Mrs D Dugmore v Dudley Metropolitan Borough Council: 1302891/2022
EMPLOYMENT TRIBUNALS
Case No 1302891/2022
Between
Mrs D DugmoreClaimantDudley Metropolitan Borough CouncilRespondent
Before
Employment Judge FaulknerDate 30 May 2025
REASONS
[1]This case was concerned with complaints of all forms of disability discrimination, as well as victimisation and unfair constructive dismissal, the Claimant having resigned from her work in the Homelessness Prevention and Response Team of the Respondent local authority with effect from 4 April 2022. The original listing for the Final Hearing was not sufficient to conclude the case, with the Tribunal needing a substantial amount of time in deliberations in view of the number of issues it had to consider. Pre-planned surgery for the Claimant meant that it was not possible to reconvene to give oral judgment until late May 2025.
Issues
[2]The issues to be determined by the Tribunal were set out in some detail by Employment Judge Platt in Case Management Orders dated 8 November 2023, following a Hearing on 3 November 2023. The List of Issues she produced is annexed to this Judgment. The following variations or supplements to that List were agreed with the parties. Time limits[3]Although it did not mean they were in time of course, the Respondent agreed that the Claimant’s discrimination complaints were part of her original Claim Form, rather than only being presented when she applied to amend her Claim.[4]Mr Mellis said at the outset that whether the Claimant resigned in response to any fundamental breach of contract was not likely to be an issue (see paragraph 2.1.3 of the List of Issues). He also confirmed that the Respondent did not seek to argue affirmation (paragraph 2.1.4 of the List), nor that there was a fair reason for dismissal (paragraphs 2.2 to 2.5). He also accepted in closing submissions that, regardless of our conclusions on discrimination, the various complaints the Claimant relied on for those purposes were also relied on in a freestanding way (that is, because they happened, regardless of discrimination) for the purposes of the unfair dismissal complaint.[5]The question of whether the Claimant was a disabled person within the meaning of the Equality Act 2010 remained disputed as per EJ Platt’s List, the Claimant confirming she relied on the three alleged impairments mentioned at paragraph 4.1.1. On day 2 of the Hearing (17 October 2024), the Respondent conceded that the Claimant was a disabled person by reason of those impairments from 11 January 2022 (the date of the second occupational health (“OH”) report in respect of the Claimant), and that it had knowledge of the same, but it remained that we were required to determine the disability question for the period 11 February 2021 to 10 January 2022. The Respondent specified that its concession was that the substantial adverse effects were frequency/urgency of urination, on the basis of what the Tribunal would likely have found the position to be in the absence of medication treating those symptoms, and was made on the basis that the effects were long term “as at that time it had become apparent medication, while helping, had not resolved the issue and the symptoms were now at the 8/9 months point” (paragraph 60 of Mr Mellis’ written submissions). Direct disability discrimination[6]The Respondent did not accept that if what the Claimant alleged took place, she was thereby subjected to a detriment.[7]The Claimant confirmed on day 2 that she relied on hypothetical comparators, namely that the Respondent would have treated someone in materially similar circumstances who did not have a disability better than it treated her. Discrimination arising from disability[8]The Claimant provided helpful written clarification of which claimed incidents of unfavourable treatment were said to have been because of which thing that was said to have arisen in consequence of her disability/disabilities. What she set out in that document will be evident from our conclusions.[9]The Respondent accepted that if the Claimant was disabled at the relevant times for any section 15 complaint, the things at paragraph6.2.1 of EJ Platt’s List (in so far as it concerned the period from 11 January 2022) and at paragraph6.2.2 arose in consequence of the Claimant’s disabilities. It accepted that all of the things at paragraph 6.2 of the List arose from her health problems (see its Grounds of Resistance at page 79 of the bundle).[10]The Respondent’s justifications for any unfavourable treatment were set out at paragraph 43(n) of its Grounds of Resistance, also on page 79: 10.1. Requiring changes to be made to an employee’s role, whilst engaging in a phased return to work following a period of long-term sickness absence, in accordance with discussions both with an OH professional and the employee themselves. 10.2. Taking into account business requirements when facilitating a phased return to work.[11]A further PCP was added as paragraph 7.1.3 of the List of Issues by consent, namely that from 3 March 2022 the Respondent had a policy that case manager duty could only be done in the office. The Respondent accepted it had the PCPs at paragraphs 7.1.2 and 7.1.3, but not that at 7.1.1, though it agreed that this could be a PCP in principle. The application of the PCPs was conceded – issues 7.2 and 7.3. Group and individual disadvantage were disputed.[12]The Respondent’s justifications for indirect discrimination, if established, were set out at paragraph 43(ah) of its Grounds of Resistance on page 83: 12.1. Requiring face-to-face customer services to be provided face-to-face. 12.2. Requiring Team Leaders to supervise the office, deal with customers and oversee the face-to-face customer services provided by their teams.[13]The Claimant confirmed the alleged substantial disadvantages to be as follows (there being in practice six alleged PCPs): 13.1. For the first PCP (not allowing the Team Leader role to be conducted from home), “required me to work in the office”, the Claimant adding that this was inconsistent with advice from OH. 13.2. For the second PCP (not allowing Case Manager duty to be conducted from home), requiring her to return to work in the office, the Claimant again mentioning that this was inconsistent with OH advice. 13.3. For the third PCP (requiring the Claimant to undertake a role on the Homes for Ukraine Project), requiring her to work in the office. 13.4. For the fourth PCP (not being allowed to work flexibly under the Respondent’s Flexible Working Policy), “[it] prevented me working flexible hours to help manage my symptoms by taking the breaks recommended by OH through imposing a rigid 9-to-5 pattern”. 13.5. For the fifth PCP (not implementing agreed reasonable adjustments), “[the Respondent] imposed [a] weekly working pattern during [the period when she was working] part time that prevented me taking annual leave on days I wanted and not agreeing to working non-consecutive days that would have helped manage my symptoms and aid my recovery”. 13.6. For the sixth PCP (not holding regular reviews/meetings), Ms Rowley did not understand what tasks and working patterns would aid the Claimant’s symptom management.[14]What is stated at paragraph 10.1.1 in EJ Platt’s List was agreed to have been a protected act. Withdrawals[15]The Claimant withdrew a number of her complaints on 18 October 2024 after a discussion during which we indicated, without any obligation on her and Mr Waller to do so, that given the vast scope of her complaints it may be helpful to consider more carefully which ones she wished to pursue. The withdrawn complaints were those at paragraphs 5.1.1 and 6.1.1 to 6.1.7 inclusive of EJ Platt’s List. We checked a couple of times with the Claimant and Mr Waller whether they were content with their decisions in this regard, including when it became clear on working back through the List of Issues with the parties in light of the Respondent’s concession on disability that we would still have to decide disability and knowledge for the period with which the withdrawn complaints were concerned. They confirmed that they were content and that there was no reason not to dismiss the complaints.
Hearing
[16]We read statements (well over 100 pages) and heard evidence from: the Claimant and, for the Respondent, Hayley Rowley (Head of Service for Safer Communities, before that Interim Head for Housing Strategy and before that Team Manager of the Homelessness Prevention Service, and the Claimant’s line manager from the start of her employment), Bobby Ianetta (Private Sector Officer) and Haresha Duljeet (seconded as Team Manager and formerly Team Leader). The Claimant’s sister, Donna Wedgbury, also gave a statement but did not give oral evidence, as neither the Tribunal nor the Respondent had any questions for her. Alphanumeric references in these Reasons are references to the witness statements, e.g. DD3 would be paragraph 3 of the Claimant’s statement and HR3 would be paragraph 3 of Ms Rowley’s. References to the Claimant’s disability impact statement are denoted as DD2, so that paragraph 6 of that statement would be DD2.6 for example. The parties agreed, given the comprehensive List of Issues produced by EJ Platt and the clarifications above, that we did not need to read the Claimant’s Particulars of Claim or the Respondent’s Grounds of Resistance.[17]Unhelpfully, there were several bundles – a main bundle (1341 pages), a medical bundle (489 pages) and an “unagreed bundle” (126 pages). As will be evident below, we were taken to a large number of those documents and considered them in reaching our decision. We made clear that these were the only documents we would consider and that we would not even read those referred to in the witness statements unless taken to them during the evidence, given the substantial reading time required just to read the statements themselves and the fact that reading referred documents as well would have extended the reading time even further. Page references in these Reasons are to the main bundle unless denoted with the prefix “M” for the medical bundle or “U” for the unagreed bundle. We also watched two short videos, with the consent of the parties, which we refer to below. Numerical references to complaints correspond to the List of Issues prepared by Employment Judge Platt as supplemented by the amendments recounted above.[18]At an early stage in the proceedings, we made a Privacy Order to the effect that the Claimant’s identity was anonymised in the Tribunal’s hearing lists. We made clear in doing so that the Order would be considered again once oral judgment had been given. When we had done so, Mr Waller asked only that the Claimant’s address not be included in any published document. It is of course unnecessary for us to refer to that address in these Reasons. The Privacy Order has therefore been revoked, and the parties are named both in the original Judgment and in these Reasons.
Facts
[19]As is always the case, we have not dealt with every factual matter raised by the parties, focusing on those we deemed most relevant to the issues before us. Just because something is not mentioned in our findings does not mean we were not aware of it. As is also always the case, we were not present at any of the events with which this Claim was concerned. We could only make findings of fact on the balance of probabilities, based on the evidence we heard and were taken to. Whether each witness sought to give us a truthful account of events as they recall them is a matter for their individual conscience.
Background
[20]The Claimant was employed from 3 October 2016 as a Case Manager and then (from April 2018) as a Team Leader in the Respondent’s Homelessness Prevention & Response Team until her resignation on 4 April 2022. As Ms Rowley explained (HR22) two Team Leader posts were created in 2020, both retaining case management and out of hours rota responsibility, but one taking the lead for managing the duty team and the other for the rest of the staff team. We accepted her unchallenged summary that both roles carried a “requirement to work on site to support and manage the team with agreed home working for admin tasks”. The Claimant got one role, Ms Duljeet the other. The Team is very busy, providing an in-demand service to a client base that can be very challenging.[21]The Claimant and Ms Rowley first worked together in 2005/6 at a citizens advice bureau. The Claimant agrees that, historically, they had a good relationship. They attended each other’s weddings, the Claimant being a witness at Ms Rowley’s. They also sometimes socialised together. In response to a request from the Claimant in the course of this litigation, Ms Rowley could only recall four such times over a six year period (page 1201) and these were all with other people present, though she said there were also many coffees together and wanted to emphasise to us, which we accepted as unchallenged evidence, that she and the Claimant had worked next to each other for 20 years and that the Claimant had followed her to three jobs, including to the Respondent. Before the events with which this case is concerned, she had previously given the Claimant a glowing appraisal (page 829). Ms Ianetta, who had not been in the Team as long, said at BI13 that she observed that that no topic was off the table amongst Team members, and there were many longstanding jokes, such as regarding Ms Rowley’s love of sugar, or the Claimant’s use of her red pen. Ms Duljeet said that she and the Claimant often worked together at the Claimant’s house, which was again unchallenged. She also said at HD21 that when Ms Rowley contemplated leaving the Respondent in 2017, the Claimant organised a meeting to discuss a solution to persuade her to stay. The Claimant denied that she did. Ms Duljeet was very specific about who attended the meeting, and who attended a prior social occasion to discuss it. We thus preferred her evidence on this point.[22]As will be clear below, we dealt with each conflict of evidence on its facts rather than making generalised assessments of each witness, but it is relevant to mention at this juncture that we found Ms Duljeet to be an entirely straightforward witness who sought to do nothing other than recount matters as she recalled them. That confirmed our preference for her evidence about the Claimant leading a delegation to retain Ms Rowley’s services. We felt the same about Ms Ianetta’s evidence. As for Ms Rowley, Mr Waller submitted that her evidence was combative, chaotic and careless. We did not recognise that description at all. There were some inconsistencies in her evidence as we will highlight, but what Mr Waller said is not a fair characterisation of how she presented her account of the relevant events. We will assess the Claimant’s evidence below as we proceed with the narrative of the key events.[23]We will come back to the nature of the relationships in the team when we reach our conclusions on the harassment allegations, but pause a little further here to make two general observations about those relationships: 23.1. In our judgment, the Claimant materially underplayed during her oral evidence the reality of the close relationship she had enjoyed with Ms Rowley historically. The fact of attending and being a witness at Ms Rowley’s wedding, the fact that the documents (including transcripts of telephone calls) are littered with discussion between the two of them of personal matters unrelated to work (much of which we will refer to), the fact she led a fight to get Ms Rowley to stay with the Respondent, and the simple fact that the Claimant had followed Ms Rowley on three occasions to different jobs, is all testament to a much closer friendship than the Claimant was prepared to admit. 23.2. Ms Ianetta, who we repeat we found to be a straightforward witness who sought only to recount what she recalled, stated accurately that this was a team in which frank discussion was the order of the day. That is unsurprising given the nature of its work, it was the consistent evidence of the Respondent’s witnesses, and it was again supported by the content of the transcripts of conversations between the Claimant and Ms Rowley to which we were taken.[24]As for her colleagues’ knowledge of the Claimant’s health, Ms Rowley stated at HR10, “at no point was I ever told by [the Claimant] that she had a disability or that adjustments were needed”, though the Claimant says at DD17 that Ms Rowley knew of her congenital kidney condition. Ms Rowley went on to say at HR42-47: 24.1. That “… my knowledge of what [the Claimant] enjoys and is able to do versus what she presents [that is, to the Tribunal] about her health do seem at odds”, clarifying in oral evidence that she was referring to the Claimant being involved in martial arts and going hiking. The Claimant confirmed in her oral evidence that colleagues knew she was involved in martial arts, but told us that she did not tell them that she had adjustments in place to allow her to participate. We were satisfied that the Claimant had such adjustments in place for practising her martial arts as she said, which naturally the Respondent could not contest, though as she also said, her colleagues were unaware of those adjustments. 24.2. That Ms Wedgbury did not appear to look after the Claimant in person on a daily basis during the Claimant’s long sickness absence from February 2021, as the Respondent believed had been indicated by Ms Wedgbury’s disability impact statement. In support of that assertion, Ms Rowley cited various social media posts showing Ms Wedgbury doing various activities other than supporting the Claimant, though many or most of these activities took place after the Claimant’s employment with the Respondent ended. Although as we have said she did not give evidence, so that she could not be asked to clarify the point, we were satisfied that Ms Wedgbury was not seeking to say in her disability impact statement that she was at the Claimant’s home caring for her every day, though she clearly said she was in touch with her on a daily basis and that she regularly provided practical support in the home.[25]Ms Duljeet said at HD14 that the Claimant joked about having three kidneys, “one normal and two mini ones”, said it was just an anomaly and that it had no effect on her, though in oral evidence Ms Duljeet nuanced the last of these comments to say that her point was that the Claimant never disclosed any impact rather than that she positively said there was no impact. She says she never witnessed any effect on the Claimant’s daily activities, adding at HD15 that she and Claimant both worked out regularly. We accepted Ms Duljeet’s evidence that the Claimant made these comments to her about her health – it corresponded with our view of the reliability of Ms Duljeet’s evidence overall and with the general nature of how relations in the team were conducted. We also accepted Ms Duljeet’s evidence that the Claimant did not disclose verbally or give any indication in practice, to Ms Duljeet, that she was impacted in any way by her medical conditions. This was consistent in particular with the fact that the Claimant did not have any sickness absence of note prior to February 2021. Alleged disabilities – the Claimant’s witness evidence[26]The impairments on which the Claimant relied for her case that she was at all relevant times a disabled person under the Equality Act 2010 were duplex kidney, duplex ureter and prominent extra-renal pelvis. As noted above, the Respondent conceded that she was a disabled person under the Act as a result of these impairments with effect from 11 January 2022. What was not conceded was that she was thus disabled from 11 February 2021 (the earliest relevant date for our purposes – see EJ Platt’s List at paragraph 6.2.1) until 10 January 2022.[27]In simple terms, duplex kidney means that the Claimant has a double kidney on one side and a normal kidney on the other (DD2.1). As she said at DD2.6 she was diagnosed with this impairment in 1977. The duplex ureter, which the Claimant also described as a congenital urinary tract anomaly, means that she has duplicated ureters coming from the duplex kidney. She described the general symptoms of these impairments in her second statement, saying they vary from being completely asymptomatic through to pain, urinary incontinence and recurrent urinary tract infections (“UTIs”). She said that she has had all of these symptoms since 1977, that the pain can be debilitating, but that she improves with over-the-counter and prescribed medication, usually one course of antibiotics.[28]She had minimal sickness absence before 11 February 2021, being off only twice because of infections in 4 years. See MB462 for a record of her absences.[29]In early 2021, she had an immune response to the Covid-19 vaccine, and experienced vomiting, fatigue from poor sleep, fever and pain. She went off sick from 11 February 2021 and remained off until January 2022. By 15 February 2021, she was experiencing right sided pain, her skin was beginning to look yellow, and she continued to feel nauseous and dizzy. She was prescribed antibiotics. In March 2021, her GP thought she might have renal colic. Scan results on 22 March 2021 however revealed the third impairment, namely a prominent right extra renal pelvis. Using simple terms, which the Claimant helpfully explained to us, this is where the tube from the kidney to the collecting sac is not sitting snug, thus folding over when the sac fills up and causing a blockage. As she told us, this is asymptomatic in most cases.[30]The note of the Claimant’s telephone consultation with her GP on 15 February 2021 (page MB58) stated that she was “feeling run down since having covid vaccine on 20/1”; the Claimant agreed that she sought advice because the vaccine had made her unwell. The GP also recorded “no urinary symptoms”, though the Claimant told us this was incorrect. We were hesitant to say that the GP made a mistake in relation to such an important symptom, if it had been mentioned to him in different terms and so concluded that the note was accurate. We noted that the Claimant saw the same doctor later that day and that he diagnosed a “suspected UTI”, although symptoms of UTIs may vary.[31]A further note of a GP consultation on 22 February 2021 (page MB57) said that the Claimant had a UTI, and that she had experienced two or three in the last year. The parties agreed that lots of people get UTIs, though not many people have the Claimant’s conditions. The note added, “no frequency, no dysuria [pain in urination]”. The Claimant told us she did have frequency issues but, again, we were firmly inclined to the view that the doctor recorded what the Claimant had said to them.[32]The GP consultation note on 1 March 2021 (page MB56) said that the Claimant’s pain was intermittent and not bad, she was “not unwell … no frequency”. She was to be sent for a blood test and scan. As can be seen at MB21, the GP referred the Claimant to a urologist on 8 April 2021. No urine frequency issue was mentioned in the referral. The Claimant did not accept that it was not an issue at that time, saying that it is a symptom of a UTI and that she has it regularly. Again, we took the view that the GP would have recorded in the referral the most important things they had been told. It was certainly implausible that the GP made all of the errors suggested by the Claimant.[33]On 15 April 2021, the Claimant had a bad reaction to a second Covid vaccine, including vomiting and pain. Into May, she told us she was still vomiting, and was also urinating more frequently so that she needed toilet access at all times, felt like she would pass out, and was not able to sit or stay in one position for very long. She was given a six-week course of anti-nausea medication. At page MB53, it can be seen that her GP consultation note from 18 May 2021 referred to nausea which “started after CV-19 vaccine”. The Claimant said to us that her nausea arose from a UTI. She conceded however that there was no medical evidence before the Tribunal that the vaccines affected her as they did because of her underlying conditions.[34]At page MB22 there was a urologist’s letter of 7 July 2021 after an appointment on 29 June 2021. It referred to the Claimant reporting right-side loin pain since January, associated with “frequency of urination, nausea and vomiting”.[35]The Claimant told us that by August 2021 she was urinating on average around 13 times a day. In September 2021, she was ill for over a week due to a virus, and needed to be accompanied to post a letter. She said that her conditions made her more susceptible to such things, though again we were not taken to any medical evidence of that and so could not take it at face value. She continued to need to use the toilet with the same regularity in October 2021, for which she was given medication by the urologist. This produced some improvement by December 2021. At page MB23 a urologist’s report after a clinic on 12 October 2021 referred to the Claimant having “significant urinary urgency and frequency”. It reassured her that an extra renal pelvis is a normal variation of the kidney, and made no reference to nausea or vomiting.[36]In summary, the Claimant told us that her main symptoms in her year’s absence were nausea, vomiting, pain, urinary frequency/urgency, and fatigue. She was very clear in oral evidence that the pain in question was right-sided and thus said that the pain, and all of the other symptoms during her year’s absence were the result of the extra renal pelvis. She told us she has had two or three UTIs per year for many years, when she has had some or all of these symptoms, feeling debilitated for two to three weeks at a time, although before her year’s absence, she managed them by using flexitime and weekends to recover. She said she did not always have the symptoms, though having to drink more fluids to manage her condition meant she had to go to the toilet somewhat more frequently than other people. We will come back to our factual conclusions on these matters below.[37]As to the impact of the symptoms we have described, the Claimant said that during her absence from February 2021 to January 2022: 37.1. On her worst days, she stayed in bed, relying on daily assistance and support from her husband and Ms Wedgbury, the former doing all the household chores, the latter calling her regularly and looking after her from time to time during the day so that she was not alone. 37.2. She did less exercise than before – her walking was slow and laboured, and she could not hike as she had before, not least because of not knowing where toilets may be located. 37.3. She stopped her martial arts and going to the gym. 37.4. She needed help with grocery shopping as she could not carry bags. 37.5. She could not use the vacuum cleaner. 37.6. She avoided going out where possible because of the need to access the toilet, though she did still go out, and when she did, made plans to know where toilets were available. She cancelled a trip to Cornwall because of anxiety about the journey. 37.7. She could not concentrate for long periods. 37.8. Frequency of urination, especially from August 2021, impacted her sleep and therefore her ability to perform daily activities generally.[38]Ms Wedgbury’s statement mentioned much of what the Claimant said herself, and added that at times the Claimant needed encouragement to get up and get dressed, that she assisted the Claimant by doing day-to-day household and administrative tasks and on occasions helped to dress her and attend to her personal hygiene. Again, we will come below to our conclusions on the Claimant’s condition during her absence.[39]The Claimant has taken antibiotics when she has had infections, together with ibuprofen. There was no medical opinion before us on what position she would have been in without medication, though her own evidence was that she would have been in hospital on dialysis. At the time of writing her impact statement, 16 February 2023, she was taking medication to treat the urgency and frequency of urination, painkillers and anti-inflammatory medication. She remains under the care of the urologist, with a continued treatment plan. Fit notes[40]The fit notes covering the Claimant’s long absence were at pages MB26 to 40 or were otherwise referred to in her statement. They can be summarised as saying the following (this is not a complete picture but nevertheless properly reflects the overall position): 40.1. The first was given to Ms Rowley on 16 February 2021, the GP citing a UTI (DD32). 40.2. The second, given on 23 February 2021, said the same (DD33). 40.3. For 1 to 9 March 2021 – renal colic pain because of a stone stuck in the urinary tract. 40.4. For 9 to 16 March 2021 – abdominal pains. 40.5. For 17 to 31 March 2021 – right lower back pain. 40.6. For 8 to 16 April 2021 – right loin pain. 40.7. For 19 April 2021 to 3 May 2021 – lower back pain, under urology. 40.8. From 4 May 2021 covering four weeks – lower back pain. 40.9. For 17 June 2021 to 2 July 2021 – back pain/nausea/recurrent UTI. 40.10. For 2 to 23 August 2021 – pain/nausea/recurrent UTI. 40.11. For 30 September 2021 to 22 October 2021 – back pain and nausea. 40.12. For 26 November 2021 to 4 January 2022 – recurrent UTIs, under urology. 40.13. For 6 to 21 January 2022 – recurrent UTIs, under urology.[41]It is relevant at this point to refer to Ms Rowley’s sickness log, which was her own personal record, not one she was required to keep, and did not on every occasion record correctly what a fit note said. She accepted in evidence that there were other inaccuracies in the log, and that she did not record all of her calls with the Claimant, for example the one that took place on 5 May 2021 – see below – but these were notes for her only, were not official records, she was a very busy manager in a very busy team, and so we did not think that the inaccuracies or omissions had any material effect on her credibility as a witness. OH reports[42]In March 2021 Ms Rowley referred the Claimant to OH. The referral is at pages MB5-6 and said that the Claimant was away from work for a few weeks “and has advised she has underlying issues with her kidneys/infections”. As to her work, it said she was a Team Leader, “currently working f/t [full time] from home” – this was during the pandemic (HR70). The Claimant was assessed by OH on 4 May 2021. The report, following that assessment, which is at pages MB7-9, was received by the Respondent on 6 May 2021. It said the Claimant had advised she “has a congenital kidney condition that makes her more prone to UTIs” and that her current absence was due to a UTI shortly after a Covid vaccine. The assessment was that the Claimant was temporarily unfit for work “due to the severity of her reported symptoms”, which included the need to use the toilet more frequently, nausea and stomach pain. It was said that the Claimant had reported independence with her “activities of daily living although she has help with her shopping at times. She manages short walks”.[43]The report went on to give an opinion that the Claimant had a long-term kidney condition which can increase susceptibility to UTIs. OH were unable to give a timescale for a return to work, stating that it would depend upon any underlying diagnosis and the Claimant’s response to treatment, though the writer did not envisage a return to work in the imminent/near future and stated that no reasonable adjustments could be recommended. As and when there was a sufficient recovery OH recommended a phased return to work over three to four weeks, gradually increasing the Claimant’s hours and days, and that if she had any residual symptoms, a return to working from home and flexibility with her working hours may help her manage them. It said the kidney condition might be covered by the Equality Act.[44]The Claimant was referred to OH for the second time on 2 November 2021 – pages MB10-11 – this apparently having been discussed when Ms Rowley visited her in September. The referral stated that the Claimant wished to return to work but that it was not clear she was fit to do so as there was “no improvement in condition”. As to the role, it said that it was a “pressurised job – hands on … half Team Leader and half Case Manager. Team Leader required in office – case management is WFH [working from home] (in the main)”. Ms Rowley said on the form that the Respondent wanted to avoid further absence if possible, and so she was keen to be sure the Claimant was fit. She told us at HR163 that the mention of office work was because by this point Team members were returning to being office-based.[45]The OH assessment took place on 11 January 2022 and the report was received by the Respondent shortly thereafter – pages MB12-15. This is the date from which the Respondent accepts that the Claimant was disabled, and that it had knowledge of the same. The report again referred to the Claimant’s congenital kidney condition “which increases her susceptibility to UTIs”. The Claimant reported some improvement since taking medication, though there was no change in her urinary frequency, which the report said, “can interfere with her ability to complete her normal daily activities. She is usually independent with her activities of daily living”. The outcome of the assessment was that the Claimant had made a sufficient improvement to return to work with some adjustments. OH recommended: 45.1. A return to working from home, to allow the Claimant to manage her symptoms, saying she would struggle to return to the office until there was further improvement. 45.2. A phased return to work over three to four weeks, commencing at 30%. 45.3. Consideration of a temporary reduction in hours (no period for the reduction, nor any level of hours, was specified). 45.4. Easy access to toilet facilities and brief breaks.[46]Ms Rowley told us that what this report changed in terms of the Respondent’s knowledge of the Claimant’s health conditions was how long the Claimant’s symptoms had lasted, whereas with the first report she did not see it as a longterm thing as the Claimant had said she would be returning to work soon and that her illness had been triggered by the Covid vaccine.[47]Complaint 6.1.3 was withdrawn, and thus we simply record as a finding of fact that the Claimant’s case was that she was concerned about the first referral to OH, as she was only sent part of the form to authorise it.[48]Complaint 6.1.9 was that the second OH report was not followed up or discussed – the Claimant said there was no discussion until she went on annual leave five weeks into her return to work (see below). In one of three calls between them on 17 January 2022, Ms Rowley asked the Claimant to give her the gist of what the report said. The Claimant asked if Ms Rowley would consider a temporary reduction in hours, Ms Rowley replying, “If that’s what you want”. Whilst, as we will come to, working from home and reduced hours were agreed, the Claimant says that flexible hours and logging on after breaks were not. She says these failings on Ms Rowley’s part were because she had taken time off, which she says arose from her disabilities. Contact during sick leave[49]As noted above, the Claimant was absent from work from 11 February 2021 until 21 January 2022. Her case was that Ms Rowley became a “rogue manager” from the point her sick leave began. The Claimant’s contractual pay reduced to half from 13 July 2021. Complaints 6.1.1 to 6.1.7, concerned with such matters as the frequency of contact from Ms Rowley during the absence and the date when the sick leave started, were not pursued. We thus deal with the contact Ms Rowley made with the Claimant during her sick leave only to the extent that it is relevant to the issues that remained live, including the question of disability and the Respondent’s knowledge of the same.[50]On 11 February 2021, the Claimant contacted Ms Rowley to say she was not well, and thought she had a kidney/water infection, expecting to return to work in a few days. On 23 February 2021 (HR54), the Claimant dropped off a fit note and said she expected to return to work the following week. Ms Rowley’s personal record at page 874 recorded the Claimant saying that the issue was possible kidney stones. The Claimant agreed she may have said that; we thus found that she did.[51]Ms Rowley said at HR58-9 that she called the Claimant on 10 March 2021 (the Claimant told us it was the day before), and that the Claimant said she did not have any idea what was causing her to be ill. Ms Rowley’s record at page 875 said stomach pains were reported, with the Claimant using the word “episodes”. We were content to accept that record.[52]When Ms Rowley called the Claimant on 23 March 2021, the Claimant said she was uncomfortable all the time, an infection had been ruled out (see page 879), she was taking antibiotics, her skin was a bit yellow, but she did not have test results from the hospital (HR71-2), though she did tell Ms Rowley of the additional diagnosis of prominent right extra-renal pelvis and mentioned a urology referral – DD65. At HR81 and 82, Ms Rowley told us that she called the Claimant again on 8 April 2021 and was informed that the Claimant had been told a tube from her kidney was inflamed, and about something called “extra renal pelvis prominent”. She expected to take antibiotics and possibly antiinflammatory medication, was still on painkillers but expected to return to work imminently. The Claimant agreed this call took place but says it was on 23 March 2021, which seems right.[53]In an email exchange on 12 April 2021, the Claimant said she hoped to return to work a week later, but would need “a bit of a phased return”. Ms Rowley contacted her again on 19 April as she did not in fact return. The Claimant told Ms Rowley she had reacted badly to a Covid vaccine – see page 910.[54]On 5 May 2021 (HR89), the Claimant told Ms Rowley the doctors could not say what was wrong, though she added “they’ve said whatever it is I’ve got this extra one that’s inflamed/enlarged” (page 969). We will return to this call later when dealing with the harassment complaints. The Claimant recorded the call, without Ms Rowley knowing. She said at DD76-7 that she did not feel she was being listened to, and had growing concerns that Ms Rowley was misrepresenting or misunderstanding information the Claimant gave her. The transcript of the call at page 975 showed the Claimant telling Ms Rowley about personal matters involving Ms Wedgbury – the Claimant agreed in evidence that she would only have said this to someone she was friendly with. Page 985 showed her asking about Ms Rowley’s husband, and page 986 about a house purchase. The Claimant told us she would have asked any colleague about those sorts of things. In our view this was another instance of her downplaying, at least to some extent, the actual nature of her relationship with Ms Rowley, or at least the nature of that relationship as her conduct portrayed it.[55]She also said to Ms Rowley that OH had suggested she could have an underlying infection or (page 970) some “debris”. She went on to say (page 971) that her second Covid injection had knocked her back – “it’s how my immune system’s reacting”. She accepted in evidence that it is possible the Respondent would not have known at this point therefore whether it was her kidneys that were reacting to the vaccine. At page 984 it was recorded that the Claimant told Ms Rowley that OH had said “either they’re gonna find something and sort it out, or it will settle down, because it’s just a reaction [that is, to the Covid vaccine]”.[56]According to HR99, in a call with Ms Rowley on 1 June 2021, the Claimant said she had no diagnosis for her illness. She said she was unable to sit still or get comfortable, was never sure when she may be sick and so may not be back at work until possibly August 2021. In her record at page 892 Ms Rowley noted that the Claimant was not having any treatment, though the Claimant told us she was having anti-sickness medication, which we accepted.[57]In a further call on 2 August 2021 (HR125) the Claimant told Ms Rowley that she may have a kidney stone. This call was also recorded. The transcript at page 1010 shows the Claimant and Ms Rowley discussing personal financial issues, though the Claimant insisted in evidence that it was simply a welfare catch up with her manager, another instance in our judgment of her seeking to minimise the reality of their relationship, at least as it appeared on the face of things. In a call with Ms Rowley on 27 August 2021 (HR136), she said she had no diagnosis and that she was not receiving any treatment.[58]On 14 September 2021 (page 492), Ms Rowley and the Claimant exchanged emails. Ms Rowley enquired about meeting up, the Claimant replied she was free, with a smiling emoji, and said, “Do you want to come to mine?”. The Claimant told us this was because her home was where she was most comfortable. Whilst of course, she is likely to have felt more comfortable at home whilst sick, the obvious inference from this exchange was that the Claimant was not only comfortable with Ms Rowley visiting her at home, but more than happy for her to do so. This was the language of friendship. Ms Rowley made the visit on 16 September 2021. She told us the Claimant appeared to be struggling when walking and sitting, mentioned that she was uncomfortable and that she needed to go to the toilet frequently, and that she could not concentrate for long periods due to the pain. That was unchallenged evidence. As indicated above, a new OH referral was agreed as the Claimant was saying she wanted to return to work.[59]In a call on 2 November 2021 (HR156-159), the Claimant advised Ms Rowley she was taking medication but without effect. The Claimant said at DD140 that she mentioned that her toilet needs were still urgent and frequent. Ms Rowley’s evidence is that the Claimant said she had used the toilet 15 times the day before, making a joke of it. We think it consistent with the nature of their relationship that the Claimant did make light of this difficult issue in this conversation. Ms Rowley asked the Claimant why she wanted to return to work if she was still unwell, the Claimant replying she could return part-time for four months by using her leave. Ms Rowley told us she mentioned that if the Claimant returned and had to go off again, this would create a large Bradford Factor score. We accepted that as unchallenged evidence.[60]In an email exchange on 1 December 2021 (HR166-7), Ms Rowley asked the Claimant if her medication was working, the Claimant replying, “Yay, good news, we have some improvement” adding a smiling emoji, yet another example of a communication that shows the relationship even at this late stage in her sickness absence to have been more than the usual line manager relationship, or at the very least that Ms Rowley could have properly read it as such. On 17 January 2022, the Claimant made contact with Ms Rowley regarding her OH report. She advised she would return to work on 24 January and asked for a reduced working week. Ms Rowley said at HR177, “I asked her to think about it and what she thought she may need for this to happen”. Factual conclusions on Claimant’s health[61]Taking together the evidence from the medical records, the OH report in May, the contact between the Claimant and Ms Rowley, and the Claimant’s own evidence, we reached the following factual conclusions regarding the period before 11 January 2022 (how they translated into determination of issues such as disability and knowledge of disability will be set out in our conclusions): 61.1. We could accept, not least as the Respondent could not challenge it, that before her long absence, the Claimant had two or three UTIs per year, each lasting two to three weeks. This was not inconsistent with her otherwise being able to hike and do her martial arts. She had very little time off work as a result of these episodes, as although in pain – which we accepted – she managed it with antibiotics and painkillers, and by resting at weekends. 61.2. What was clear was that none of this was visible to the Respondent, because the Claimant managed it. What her colleagues did observe was her continuing with substantial physical exercise, having no noticeable time off and performing her role. Her duplex kidney condition was known, but she did not communicate to the Respondent any adverse impact resulting from it, either verbally or by what her colleagues observed. 61.3. We had no evidence on the impact of health issues on the Claimant’s normal day to day activities before February 2021. 61.4. Her illness which unfolded into the long absence from February 2021 to January 2022 very much seems to have been precipitated by an adverse reaction to a Covid-19 vaccine, and indeed she had a similar adverse reaction to a subsequent vaccine. The first OH report, and the Claimant’s communications with the Respondent, make that clear. The Claimant expected, and told the Respondent she expected, to return to work quickly. 61.5. A number of symptoms seem to have been prominent and, even if intermittent, sustained over the duration of the absence, or over part of the absence. These were as follows: 61.5.1. Urgency and frequency of urination. This does not seem to have been of concern in the initial months as we have set out, but OH referred to it in May, it was clearly worse by August (when the Claimant referred in conversation with Ms Rowley to the number of times she was going to the toilet), and it was still an issue in November as her call with Ms Rowley showed. 61.5.2. Right-sided pain seems also to have been a regular problem, reflected in the fit notes, and in what the urologist recorded the Claimant had reported to him in July as having been an issue since January. 61.5.3. Discomfort and not being able to sit in one position for a long period also appears in the evidence, from around June, both in what the Claimant said in her impact statement and in what Ms Rowley observed during her September visit to the Claimant’s home. 61.5.4. Nausea/sickness was obviously an issue in January, again in July, and it was recorded in a fit note in October. 61.5.5. We saw no reason not to accept the Claimant’s evidence that she had one UTI per month in this period. 61.6. We also accepted her evidence regarding the impact of these symptoms on her during this period as not inconsistent with the documents and the evidence overall, namely: 61.6.1. That she needed to use the toilet more frequently. 61.6.2. That she went out less, and stopped hiking and her martial arts. 61.6.3. That on some days she was not able to attend to self-care and household duties. This was plainly only some days however, and the tenor of the evidence was very much that these days were infrequent, as there were times when she was able to go out shopping and visit family. More pertinently, she was able to hold regular telephone or email conversations with Ms Rowley, and both OH reports referred to her usually being able to function independently. 61.7. The evidence we were taken to did not suggest that any of these impacts was communicated to the Respondent and they did not feature in the parts of the conversations with Ms Rowley to which we were taken, with the obvious exception of frequency of urination. 61.8. The Claimant’s evidence as to the medication she took – antibiotics and painkillers – was undisputed. 61.9. The Claimant’s case was very firmly that it was the extra renal pelvis impairment that led to all of the symptoms and impact we have described. She based that conclusion on the fact that she was experiencing right-sided pain. There was no medical evidence before us drawing that connection. 61.10. What was clear was that for the whole period of absence, the Claimant was unable to indicate to the Respondent the cause of her illness and symptoms, giving Ms Rowley a variety of suggestions made to her by medical professionals, and repeatedly saying that no (certainly no conclusive) explanation had been given to her. Indeed, this is what the first OH report said – that there was no clear underlying cause. Return to work[62]The Respondent’s Attendance Management Policy (“AMP”) says at page 347 that after a sickness absence the Respondent should conduct a return-to-work interview. Ms Rowley accepted in evidence that the calls referred to below, before the Claimant’s return, did not comply with that requirement. She said that she and the Claimant nevertheless discussed the return to work – which is plainly correct, as will become apparent – and told us that she thought she was speaking with a friend, which we accepted for the reasons we have already explored. Page MB468 is the Respondent’s standard return to work form. Ms Rowley accepted in evidence that she did not fill it in well, for example not ticking that a fit note had been received and not listing agreed adjustments, though as to the latter she pointed out that there was extensive email traffic between her and the Claimant about the details.[63]As is apparent from the reports referred to above, OH did not advise that the Claimant should work non-consecutive days during the phased return to work, but the Claimant’s case was that it was a big transition to return after a year off and that such an arrangement would have helped with her rest and recovery. On 10 September 2021 (pages 1047-8) Ms Rowley had said to the Claimant during a telephone call, “Because … when you’re on duty here, it’s 9 to 5 …but when it’s something like that [i.e., a particular project they had discussed] you’ve got more flexibility in the hours, so if you felt unwell, well you log off for a few hours”. On 21 January 2022 (page 1092), the Claimant asked Ms Rowley, “will it work for you if I do Tuesday/Thursday”, Ms Rowley replying (page 1092), “Erm, I don’t know because I’ll have to look at what we’re going to get you to do”. She then asked whether there was any reason for that pattern, to which the Claimant replied, “No it just splits it up”, laughing as she did so. As shown at page 1093, the Claimant then said “I mean I’m not going to … do it every week, we’ll just move it about when I need to”. Ms Rowley asked the Claimant to put forward her proposal in a table (pages 1097-9) and the Claimant emailed her a plan later that day (pages 513-4) proposing two non-consecutive days from 24 January 2022 to 28 March 2022 and asking Ms Rowley to confirm that senior management were aware of her request regarding annual leave and would agree to the carryover of 10 days of leave to the following leave year.[64]Ms Rowley said at HR182 that whilst she agreed to the Claimant working from home, a temporary reduction in hours, easy access to toilets and regular review meetings, she did not agree that the Claimant’s working days each week would be non-consecutive. As could be seen at page 515 however, Ms Rowley replied to the Claimant’s email saying that she was willing to agree the plan. She told us she was not sure she “completely clocked” the point about nonconsecutive days in the table. We could accept that. Our perception was very clearly that the Team generally, and Ms Rowley in particular, were extremely busy in the period with which this Claim was concerned, so that it is not surprising such points could be missed. As just mentioned, we noted that Ms Rowley had already expressed to the Claimant some hesitation about a Tuesday/Thursday pattern when she said on 21 January 2022, “Erm, I don’t know because I’ll have to look at what we’re going to get you to do”.[65]With effect from 24 January 2022, the Claimant returned to work, working from home two days a week. In fact, she worked from home until she left the Respondent’s employment. On 25 January 2022, her second day back, the Claimant told Ms Rowley she had started work at 8.40 am and that she had encountered IT difficulties. The Claimant’s evidence was that Ms Rowley texted back to say she needed to work from 9 am to 5 pm as it had not been agreed otherwise. In fact (page 848), Ms Rowley’s exact reply was “Ok. You knew it would be hard [obviously a reference to the IT issues]. Going forward just log-on 9-5. You can’t accrue flexi because there’s no way to take it”. Ms Rowley told us that all she was doing at this point was advising the Claimant not to accrue flexitime (doubtless in light of the fact that the Claimant told her she had started work at 8.40 am) because she would not be able to take it given the return-towork arrangements, whilst the Claimant’s case was that this contradicted the agreement that she could work flexibly discussed on 21 September 2021. We were absolutely clear that this was not what this text was about. Ms Rowley was obviously seeking to help the Claimant in the way she described to us.[66]The Claimant told us she could not complete her working hours between 9 am and 5 pm if she needed longer breaks, although the only evidence she pointed to in support of her case that she was penalised for taking such breaks as she needed was the text message we have just considered. Her case was that Ms Rowley acted inconsistently like this because the Claimant had been off sick and needed adjustments. Ms Rowley insisted in her evidence that working flexibly was about reduced hours (that is during a phased return) and working from home, not working flexible hours when the Claimant was actually at work.[67]On 27 January 2022, Ms Rowley emailed the Claimant (pages 533-4) to say tell her that she was on duty the following Monday afternoon – see further below – and that it was probably best for her to work the next day as well. Ms Rowley told us this was because when a member of staff takes on cases on duty, if they are not at work the next day, the cases have to be passed on, which is not good for the customer or for the colleague picking them up. The Claimant said at DD227 that this showed Ms Rowley had decided in advance of her return, without discussion, what days she would be working. She said that Ms Rowley sent her this message because she had been off sick and needed adjustments.[68]Complaint 6.1.12 concerned an alleged change to the phased return arrangements. On 17 January 2022 (page 1081), Ms Rowley said in a call with the Claimant, “we call all of the next however long it is till whenever your holiday’s used up, an extended phased return”. The Claimant said (DD202) that by 21 January 2022 however, Ms Rowley changed this agreement to a four-week phased return, stating during a call on that date (page 1091), “it won’t be a phased return after the four weeks, but I can argue it’s extended to allow you to use the holiday”. Ms Rowley told us that although the Respondent’s policy is that a phased return should be a maximum of four weeks, it was made longer by using the Claimant’s leave. The length of the phased return did not in fact change in practice.[69]The Claimant raised her concerns about the return-to-work arrangements with Ms Rowley in an email on 27 January 2022 (page 537). She indicated that Ms Rowley had agreed she could work flexibly and that she had told Ms Rowley she would need to work non-consecutive days. She said that notwithstanding these arrangements, Ms Rowley had put her on the duty rota, had told her she needed to log on from 9 till 5, and had stipulated her working days following the exchanges about that rota. She also said there had been no return-to-work interview, no consultation, no consideration of any personal appointments booked, and no flexibility. She ended the email by saying, “I have been absent from work for nearly a year due to illness, I require some flexibility, support and a considered phased return to help me to adjust … and to minimise the impact on my health to prevent further absence”.[70]The Claimant’s case was that Ms Rowley’s reply at pages MB417-420 was “hostile” (complaint 6.1.15), saying at DD241 that it was in a large font, and that in the email Ms Rowley contradicted what she had previously stated. Ms Rowley’s reply said as follows: 70.1. She saw the discussions they had engaged in before the Claimant returned as the return-to-work interviews, but if the Claimant wanted another interview, she should let her know. 70.2. She had made clear she was not happy to agree Tuesdays and Thursdays as fixed days. The Claimant had then emailed stating the number of days per week but not the actual days to be worked (though as can be seen at page 513, the Claimant did set out non-consecutive days in the work plan, which plan Ms Rowley agreed to). 70.3. It had not been agreed she could only do duty (see below) on certain days. 70.4. OH had not recommended non-consecutive days. She said, “If, even before the end of week one, you feel you are not able to work for 2 whole days in a row then I can only suggest that we look again at the rate of your phased return and perhaps drop it to one day and that I refer you back to OH for further assessment … your phased return does have to fit in with our work here”. Commenting on this part of her email, Ms Rowley told us that the Claimant at no point said she wanted non-consecutive days because of her health, just that she wanted to split up her week. She referred us to their conversation on 21 January 2022 described above (page 1092), in which Ms Rowley asked if there was any reason for the Claimant wanting to work a Tuesday and Thursday and the Claimant said, “No it just splits it up”. Ms Rowley also told us in unchallenged evidence that all part-timers work consecutive days. She said that if the Claimant was now saying she could not work two days as she believed had been agreed, something had changed and that is why she raised the possibility of returning to OH. 70.5. “You … want to be able to choose the days you work on the basis that you may have other commitments, but as far as I was aware you were returning to work and so should be available for work on any working day … you were aware I would set the days later”. The Claimant says Ms Rowley was setting her phased return working days to ensure she worked different days each week, with no consideration for medical appointments and the like, punishing her for taking time off sick. 70.6. “In regard to your point about flexible working; we are a 9-5 service and as such we need people here during those hours. This has always been the case and was the case while you were at work. I appreciate that there is room for flexible working, but we have not allowed the CMs [Case Managers] or anyone else to work in that way because it did not meet our service’s needs. The only exceptions were unless we had agreed it in advance. You are already working flexibly; your working days have been reduced. We have not discussed allowing you to work more flexible hours than have already been agreed”. The main point the Claimant made to us as to why she needed to be able to work flexibly is that she says she needed or was likely to need extended time to recover after using the toilet. Ms Rowley told us that the Claimant at no point informed her of that and that she thought the breaks OH recommended were ordinary breaks, which do not require staff to log off from work. She also told us that it was important for the Claimant to be available from 9 am to 5 pm on her non-duty day so that she could deal with follow up work to her duty cover, and because the support team, who help customers with such things as benefits applications and searching for accommodation, and the admin team who do things like booking accommodation, only work between those hours. We accepted as unchallenged that this is how the team worked.[71]The Claimant told us that she was not aware that the calls of 17 and 21 January 2022 were return to work discussions (complaint 6.1.14) as such discussions should take place after the return to work, not before, as it is agreed the Respondent’s policy provides. As just noted, Ms Rowley’s email of 27 January 2022 informed her that if she wanted a further return to work interview, she should say. The Claimant told us she felt treated differently because she required a phased return after a long absence and that she did not request a further meeting because Ms Rowley’s email was hostile.[72]By complaint 8.2.5 (one of the PCPs which it was argued gave rise to the duty to make reasonable adjustments), the Claimant said that she had no catch ups or discussions with Ms Rowley during her phased return. Ms Rowley told us that they spoke throughout that period. They were certainly in regular communication, as the emails and telephone calls show. It should also be noted that the Claimant only worked for a total of around ten days during her phased return before going on agreed annual leave and resigning shortly thereafter.[73]Complaint 6.1.22 was that on returning to work the Claimant was isolated from the Team. This broke down into three parts: 73.1. The first was that Ms Rowley failed to provided her with a team meeting date requested on 1 December 2021. The Claimant had heard about it from a colleague. It was the first in-person team meeting in a long time due to the Covid pandemic, though it was later cancelled, as Ms Rowley informed the Claimant (page 508). As page 1143 shows, on 3 March 2022, Ms Rowley told the Claimant she was welcome to attend a team meeting on that day, where they were getting together for a cup of tea and cake, but the Claimant was on leave. 73.2. Secondly, the Claimant said that Ms Rowley did not include her in weekly case manager team meetings – DD290 – even though she was doing case manager roofless rota duty. Ms Rowley told us she was not responsible for arranging those meetings. We accepted that unchallenged evidence. 73.3. Thirdly, the Claimant said that she was not asked about communication to the Team regarding her return and there was no such communication. That is correct. All that happened was that Case Managers saw her name on the rota – see Ms Rowley’s email at page 519 to Julie Watts dated 24 January 2022. Ms Rowley’s evidence was that she would not send a communication to the whole Team for anyone returning to work. We were not taken to any evidence that gave us cause to disbelieve that.[74]Complaint 6.1.13 summarised the Claimant’s position, namely that Ms Rowley dictated the terms of her return rather than engaging with her about it. She said to us that Ms Rowley had a negative attitude to absentees and believed that if you took leave, you should still work. She said at complaint 6.1.17 that Ms Rowley told her on 24 January 2022 and on other occasions how much annual leave she and others had left and that she was not bothered if she lost the leave that she had accrued herself, implying disapproval of the Claimant’s need to take leave to manage her condition. At page 1047 is part of the transcript of the call on 24 January. Ms Rowley told the Claimant she had kept most of her leave in case she needed to assist her sick husband, and said, “I don’t care if I don’t take it”; she wanted to keep the leave as the leave year progressed in case it was needed. She said in an email on 1 February 2022 (page MB209) that she was trying to fit in five weeks of leave, in a call on 21 February 2022 that she had worked each day whilst taking leave, and said something similar again on 4 March 2022 (page MB1159). Ms Rowley’s evidence was that these were just her comments, and that no-one in her team of around fifty people ever ends up not taking their leave. We will return to the reasons for the comments in our conclusions, but we saw no reason not to accept what Ms Rowley said about her colleagues taking their leave.[75]Complaint 7.1.1 (the first PCP for indirect discrimination purposes) was that no-one in the Team could work outside the hours of 9 am to 5 pm, which the Claimant said to us meant she could not give a full day’s service or take sufficient recovery time so that she had to continue working in discomfort or pain. The Claimant did not offer any evidence on group disadvantage relevant to this complaint.[76]As for the work allocated to the Claimant during her phased return to work, this comprised of discrete tasks and project work, as opposed to ongoing cases, for example (HR209) some work on a project for housing ex-offenders. There appeared to be no complaint before us about that, until the events which the Claimant said precipitated her resignation – see below. Indeed, the Claimant was clear in her oral evidence that her only issue with regard to her actual duties is that they were not discussed with her.[77]At DD367, the Claimant said that on 21 March 2022, she and Ms Rowley agreed her new temporary reduced hours working pattern of Monday (the whole day), Tuesday (also the whole day) and Wednesday morning. These were of course consecutive days, albeit not part of the initial return to work. Home working[78]According to Ms Rowley’s statement at HR17-18, in 2016, the Respondent implemented an agile working arrangement, so that the Homelessness Team could work from home if service needs allowed and with manager agreement. The Team worked agilely from that point, although it was agreed that Case Managers and duty staff had to work from the office to cover duty days and for customer interviews. Ms Rowley told us that Team Leaders also had to be in the office because important legal decisions needed to made about whether to house people, and to get it right there had to be discussion; having Team Leaders there also meant they could overhear and keep an eye on what their Case Managers were doing. Whilst Team Leaders had worked from home during lockdown, Ms Rowley told us it was not a role that could be done well on that basis.[79]It seemed to be agreed therefore that the Team Leader role was performed from the office before the Covid pandemic. Of course, the period immediately preceding the Claimant’s sickness absence from February 2021 was dominated by the pandemic, and it was accepted that as a result the Claimant had performed the role for ten months whilst working from home before she commenced her absence, although Ms Rowley confirmed at HR25-6 that the Team was still required to see people in person and maintain a presence on site, principally by the attendance of Ms Ianetta and herself.[80]At DD184, the Claimant said that Ms Rowley told her on 10 September 2021 that she and Ms Duljeet were proposing that the Claimant work from home when she returned to work, and that on 17 January 2022 (DD186), Ms Rowley said that home working would be fine as she had a lot of IT work that she wanted the Claimant to do. We accepted that unchallenged evidence.[81]At DD157 (issue 6.1.8), the Claimant said that the Respondent applied a policy from 2 November 2021, by the content of the second OH referral, that her Team Leader role could only be done in the office and not from home.[82]The Claimant clarified in oral evidence that she was saying that it was not coincidental that this was decided whilst she was absent. She did not challenge it, she told us, because she is compliant and wanted to return to work to do something (DD159). As set out at DD163, her case was that this had a worse effect on her than other Team Leaders because she could not return to office working at that time, whereas Ms Duljeet could (DD164). She added at DD165 that Ms Rowley knew she could not comply with this requirement due to her toileting needs, pain management and fatigue. It was particularly the need for access to toilets and taking breaks thereafter that the Claimant told us was of concern.[83]On 23 January 2022 (page 522), Ms Rowley said that if the Claimant could not return “to [her] full-time post in the workplace” after the phased return “I have agreed that I will look at whether you would be able to reduce your hours to half permanently” on the Case Manager side of the role. Ms Rowley said at HR216 that working from home was also discussed at the Stage 1 AMP meeting on 25 February 2022 – see below – Ms Rowley explaining to the Claimant that because she could not carry out her Team Leader role from the office, other tasks that could be done from home would have to be found. At HR221, Ms Rowley said that her intention was to give the Claimant work she could do whilst settling back in, that she would not then have to hand work over when she went on annual leave.[84]At pages 1130-2 is the transcript of Ms Rowley’s conversation with the Claimant on 3 March 2022 (again, Ms Rowley did not know it was being recorded) in which they discussed the following: 84.1. Ms Rowley said that from the following Monday they were expecting duty staff to be in the office, which for the Claimant meant half a day. It seems clear therefore that the Claimant had been doing duty work from home during her return to work to this point. 84.2. Ms Rowley asked if the Claimant felt able to do some days in the office – she told us this was about duty cover and agreed that the Respondent misstated the position in corresponding with the Claimant in the course of this litigation by stating that the Claimant was not required to work on the roofless duty rota in the office, when in fact she was (page 1207). 84.3. The Claimant replied, “Not until I’ve had my medication changed”. 84.4. Ms Rowley then said she would have to go back to OH (to check if the Claimant was in fact fit to work in the office). The Claimant asked how many days Ms Rowley would expect her to work on that basis. 84.5. Ms Rowley replied with a description of what others were doing and said that for the Claimant it would be half a day. She then explained the availability of toilets. 84.6. The Claimant replied that she would not be able to come into the office when she had an infection, which she said was once a month. 84.7. Ms Rowley said that if she had an infection, she would not be expected in. 84.8. The Claimant agreed she would be okay to go in when she did not have an infection. She said, “If I’m on duty for half a day and I’m expected up there then I’ll go up and do it”. At DD351, she said she felt forced to agree as otherwise she would be referred back to OH as unfit to work. She told us she could not return to office working at that time (DD356), and that OH had said this in the January report. AMP Process[85]The Respondent told us it is its practice to delay activating its attendance management process until an employee returns to work (page 345). That appears to be correct. The Claimant told us that her Bradford Factor score and its consequences were not discussed with her immediately before her return, which meant she was not told in advance that action was imminent under the AMP as the Respondent’s guidance at page 957 says is advisable.[86]The Claimant was first notified of the implementation of the AMP on 25 January 2022. Ms Rowley said at HR190 that she had to arrange to meet with the Claimant, as she met the trigger point for doing so under the AMP, Ms Rowley recognising when writing to the Claimant that it was not something she would have wanted on her return. This was also the first notification of the Claimant’s Bradford Factor score of 247; Ms Rowley told us this is her standard practice for all staff, which we had no reason to doubt. Ms Rowley made an error in the letter notifying the Claimant of the implementation of the AMP and said that the Claimant was at stage 2 rather than stage 1 – page 842. When the Claimant pointed out the error on 28 January 2022 (in her view it was not a simple error as it was also mentioned in two emails) Ms Rowley apologised – page 543 – and confirmed that the invitation to a meeting under the AMP stood, but for stage 1 instead of stage 2. At HR207 she said that she sent a replacement letter but there was in fact no evidence that she did. The Claimant told us that the stage 2 letter thus remained on her file. That seems to be correct, though Ms Rowley’s email at page 543 made clear it should be taken as a stage 1 letter instead.[87]It seems to be agreed that the AMP requires that a stage 1 meeting be held within four weeks of a return to work. Complaint 6.1.21.4 concerned the delay in Ms Rowley holding this meeting with the Claimant. It was originally arranged for 8 February 2022. On 1 February 2022 (page 555) the Claimant asked for it to be rearranged, which was agreed. On 8 February 2022 (page 566) Ms Rowley asked the Claimant which alternative day suited her. The Claimant’s point was that Ms Rowley could have looked at her Outlook calendar to see when she was free rather than asking her about it. On 25 February 2022, Ms Rowley chased for a reply. The Claimant said she had replied but accept in evidence that she hadn’t – see pages 559-60.[88]The Stage 1 meeting took place on 25 February 2022, with a further conversation on 3 March 2022, whilst the Claimant was on annual leave, during which Ms Rowley said she was sending the Claimant the formal stage 1 warning letter (page 1130). The Claimant told us she did not realise the discussion on 3 March was a formal meeting. Ms Rowley said she takes an informal approach on all such matters, which we accepted as consistent with her dealings with her colleagues generally. As the transcript shows (this was another recorded discussion), Ms Rowley referred to it as “this silly stage 1 thing” which she said was just a formality (page 1110). The Claimant accepted that she was aware this was to be a discussion of her Bradford Factor score. As Ms Rowley said at HR215, she also agreed at this meeting a temporary change for the Claimant to part-time hours for 6 months, with a review factored in.[89]The Stage 1 warning letter was sent on 4 March 2022 – page 593. The letter recorded that a phased return working reduced hours and the ability to work from home had been agreed, as had a decrease to 18.5 hours per week for 6 months, including working in the office when required. There was no appeal. The Claimant’s case was that she did not feel physically or emotionally able to – DD3. Annual leave[90]On 17 January 2022 – page 1067 – there was some discussion between the Claimant and Ms Rowley about the Claimant’s annual leave. The Claimant agreed in evidence that she and Ms Rowley were seeking to collaborate regarding the best use of the leave she had accrued whilst off sick, but complaint 6.1.18 was that both on this date and on 24 January 2022, Ms Rowley questioned and failed to accept the Claimant’s holiday entitlement after the Claimant told her she had spoken to Human Resources. It is clear from the transcript at page 1069 that Ms Rowley made clear she did not want the Claimant to lose her leave. The Claimant told her that Human Resources had said she had seven weeks and four days to take, Ms Rowley replying, “Have you though? … I haven’t ended your sick leave, have I?”. Ms Rowley told us that it was necessary for her to end the sick leave to allow the system to calculate the annual leave entitlement, and that she was just asking a question, as she simply didn’t know. We accepted that evidence as plainly correct based on what was said in the transcript.[91]On 21 January 2022 (page 1091) the Claimant asked about carrying ten days over to the next leave year starting on 1 April 2022; Ms Rowley said she thought that would be okay. In their exchange on 22 and 23 January 2022 (page 523), Ms Rowley said she would check with Human Resources. The Claimant emailed Ms Rowley on 24 January (page 521) saying she had spoken with Human Resources herself and was told she could not carry over ten days without Head of Service approval. She therefore presented a different plan, which was to take all her leave before the holiday year ended “as you stated would like to agree that I take the leave in March as full weeks”. The Claimant accepted in evidence that Ms Rowley did not prevent her taking the leave when she wanted, other than stipulating which days she should work.[92]As a result of what Human Resources had said, the Claimant asked to use all her leave entitlement before April 2022, which was agreed. The obvious intention of what she and Ms Rowley discussed was to maximise the Claimant’s pay during her phased return. For five weeks therefore she worked two days per week and was on leave for the other three days. She was then on leave from 28 February to 4 April 2022.[93]The first part of complaint 6.1.16 (DD237) was that by unilaterally deciding the days the Claimant would work in her phased return, Ms Rowley did not give her a choice when to take her annual leave, when OH had recommended decisions be agreed and symptom-led. At DD261-3, the Claimant said she had not agreed that Ms Rowley would make these decisions, no-one else was in the same circumstances as her and other staff appeared to be able to choose when they took leave and when they worked. Another Case Manager who works parttime had the same set days each week.[94]The second part of complaint 6.1.16 was that Ms Rowley contacted the Claimant during her annual leave. Ms Rowley told us that they both contacted each other, as they were friends. An example of contact during the Claimant’s leave is at page 851, when Ms Rowley texted the Claimant on Friday 28 January 2022 to let her know that she was on the roofless duty rota the following Monday (see below). She had already told her by email and could not tell us why she also texted. Also at page 851 is Ms Rowley’s text on Friday 25 March 2022 asking the Claimant if she was around for a quick meeting the following Monday, as quite a bit had happened and she would like to keep her in the loop. The Claimant replied on Monday 28 March 2022 saying she was away and did not have access to the system, asking if they could reschedule to the Friday (when she would still have been on leave). Ms Rowley then called the Claimant. The call was ignored, but Ms Rowley could not recall why she made the call after getting the Claimant’s text, though she suggested it was because they were friends. The transcript at page 1137 shows that in their conversation on 3 March 2022, the Claimant told Ms Rowley in some detail about a building project at home. The Claimant told us she was explaining why she could not attend a Team Leader meeting and insisted that in all of the more social aspects of conversation with Ms Rowley in the relevant period she was just keeping things friendly to avoid any problems. From our perspective as objective observers, whilst there had clearly been tensions between them regarding in particular the circumstances of the Claimant’s return to work, this conversation was of one piece with the friendly nature of the relationship between Ms Rowley and the Claimant to which we have repeatedly referred. Case manager roofless duty rota[95]Roofless duty is being on duty to assist those who are homeless. Ms Rowley said at HR189 that it had been agreed the Claimant would be part of this duty rota to reintroduce her to work. As we have indicated above, in the initial part of her return the Claimant did it from home. The usual practice was for the person putting the rota together to email the Team a month or so before, to find out any “can’t do” days. The Claimant accepted in evidence that when the request for “can’t do” dates went out in January it would not have been known when she was returning to work. Ms Rowley told us that “can’t do’s” are when people have meetings or medical appointments and the like. We accepted as unchallenged that this would ordinarily be the case.[96]On 25 January 2022 (page 528) Julie Watts sent a draft rota to the Team, asking them to say if any changes were required. The Claimant was included in the rota, but was only able to access it two days later. On that date, Ms Rowley told the Claimant she had asked that she be included in the rota (as per her email at pages 534-5) and that she was scheduled for the next Monday afternoon, 1 February. The Claimant replied with an alternative suggestion (page 533), agreeing to the Monday, but saying she had contacted the rota team to advise what days she wanted to work thereafter, fixing them as non-consecutive for the next 3 weeks. She said in evidence, “I had not been afforded the opportunity to supply my can’t do’s as per normal working practice” (DD221).[97]Ms Rowley said at HR199 that the Claimant told her she had other commitments on the days she had indicated she would not be working, but she had not spoken to Ms Rowley about this beforehand. She replied to the Claimant’s email to say this was not what was agreed, setting out the days she wanted the Claimant to work for the relevant weeks and why – page 536 – and saying that she had told the Claimant she was not happy with Tuesdays and Thursdays each week as set days “because this doesn’t really help us”. Ms Watts had told Ms Rowley when the Claimant would be on the rota, and Ms Rowley set out in her email to the Claimant that in each case the Claimant would work the following day.[98]As we have already set out above, the Claimant replied expressing concern about how the return to work was being managed, that she had not had a returnto-work interview and that Ms Rowley was not adhering to their agreement – page 537. As also set out above, Ms Rowley replied the same day – pages 538- 541 – including the comment, “I was aware you were returning to work and so should be available for work on any given day” (complaint 5.1.3). She said at HR205 that she and the Claimant had discussed recommendations from OH but that any phased return would also have to fit with the Respondent’s needs.[99]The Claimant said at DD233 to 235 that the “can’t do” provision had been applied to all other Case Managers in January prior to her return to work, yet not to her, the only difference being that she had been on sick leave for nearly a year and wanted a phased return. She told us that she felt penalised because she had taken time off and needed reasonable adjustments.[100]At DD418 (complaint 5.1.4), the Claimant said that the roofless duty rota was also created for April with her included in it, again without any consultation with her regarding dates. Team changes[101]As stated at HR153, on 20 October 2021, Ms Rowley notified the Team that Gillian Davies would begin acting up as Team Leader from 1 November 2021 to help with the pressure they were under. Complaint 6.1.23 was that the role remained with Ms Davies after the Claimant’s phased return to work was completed.[102]As set out at HR222, from March 2022 Ms Rowley acted up as the Respondent’s Head of Housing, and so someone had to cover her Team Manager role. On 25 February 2022 (pages 581-2) at 11.00, she wrote about this to Team Leaders, including the Claimant (who was working that day), arranging a catch up. At 15.52 on the same day (page 583) Ms Rowley emailed the Team, inviting expressions of interest to cover for her role – the Claimant was again a recipient. In their discussion earlier that day (see above), the Claimant and Ms Rowley had talked about Ms Rowley’s new position, and Ms Rowley had said she needed to meet all Team Leaders and have a discussion about it. The Claimant said Ms Rowley would need to let her know about this, as she was going on leave and would not be logging into work emails for five weeks. Ms Rowley said that she would keep her posted. The invitation at page 586, sent on 27 February 2022 for a meeting on 2 March 2022 was sent to the Claimant’s work email address after the Claimant had gone on leave – Ms Rowley received an auto reply. She told us she had to go ahead with the meeting, and could not wait for the Claimant given that she was away for so long.[103]In her conversation with the Claimant on 3 March 2022 (pages 1131-1132) Ms Rowley confirmed the decision about Team Leaders needing to be in the office, and the need for duty cover to also be done from the office. Ms Rowley told us she “very much doubts” decisions were taken at a meeting on 2 March about the Claimant’s duties as such, given that it was about the service generally not about anyone in particular. That seemed to us highly likely to be right. The transcript at page 1136 shows that during this call the Claimant and Ms Rowley also discussed the expressions of interest email Ms Rowley had sent to her colleagues.[104]It was Ms Duljeet who was appointed to act up for Ms Rowley, her appointment resulting in some line management changes. Ms Rowley told Team Leaders by email that she would arrange a meeting to discuss the changes, calling the Claimant on 21 March to ensure she knew about these developments, specifically that Ms Duljeet had got the interim Team Manager post. At DD334, the Claimant says she asked Ms Rowley if she had arranged the meeting for Team Leaders to discuss duties and that Ms Rowley replied she had not. It is not entirely clear to us whether and, if so, when any such meeting took place. The Claimant’s case was that this was the meeting that took place on 2 March. For reasons that will become clear, we did not think we needed to resolve that conflict of evidence.[105]On 23 March 2022, Ms Rowley emailed the Team regarding the changes (page 622) but the Claimant did not see it until she returned from leave on 4 April. She said at DD407 that it was at this point that she saw there had been a meeting on 2 March and felt she had been deliberately excluded, having given Ms Rowley permission to contact her so that she remained included and up to date. Alleged harassment Comments on 18 March 2021[106]In an email exchange on 18 March 2021 (pages MB317-8), Ms Rowley asked the Claimant about a hospital appointment. The Claimant replied that the medical staff had never seen anyone with three kidneys. Ms Rowley replied, “So you are officially weird?”, to which the Claimant said, “Apparently [with a smiling face emoji]”. She told us she often uses emojis to close down a situation and avoid conflict. Ms Rowley for her part said at HR68, “I had no reason to believe I had caused offence. It was commonplace for us to joke”. In contrast, the Claimant said at DD63m, “I was offended by her comment and reacted in the moment to diffuse the situation”. She told us the comment undermined her medical condition, and was belittling, but that she was not physically or mentally able to challenge it. Comments on 5 May 2021[107]On 5 May 2021, the Claimant and Ms Rowley discussed the Claimant’s health and symptoms during a call we have referred to already (page 969). The Claimant had held a call with a doctor, Ms Rowley asked what had been said, and the Claimant gave her a description about how certain things were not being flushed out, though that of itself was not an explanation for her symptoms. She then said, “Because of what’s going on with my kidneys he couldn’t say”. Ms Rowley then asked, “So what is going on with your kidneys now, what are they saying?”. The Claimant replied that she was waiting to see a specialist, to which Ms Rowley replied, “So they still haven’t found anything wrong with your kidneys yet, they still don’t know, is that what they’re saying?”, the Claimant responding, “No, they’ve said whatever it is I’ve got this extra one that’s inflamed/enlarged”. Ms Rowley said, “Oh, they’re still saying it’s inflamed, they’re saying that’s the cause. It’s alright, I couldn’t … you know when you said cause of what’s going on with my kidneys, I thought they’d found something else”. The Claimant replied, “no, no” and went on to give some more information about the OH appointment. She specifically objects to the comment “haven’t found anything wrong”, telling us there is always something wrong with her kidneys. At DD85, she said she found this comment undermining and dismissive of her congenital condition. Walking past the Claimant’s house[108]During a call on 1 June 2021, Ms Rowley told the Claimant that Ms Ianetta had walked down her street to get her steps in (DD92). She said the same in a text on 14 June 2021 (page 476) and on 19 August 2021 there is video footage which the Claimant argued shows Ms Ianetta and Ms Duljeet doing just that. We watched that footage, a 15-second clip from the Claimant’s doorbell camera looking at houses opposite. Two people walked past; we could not ascertain who they were. The Claimant said this was not an innocuous incident, as colleagues “continuously” walked past her house, on a quiet street, when there was green space nearby which would have been a more natural space for walking. She told us she felt that she was being spied on as the Respondent did not believe what she was saying about her illness – this was the culture she said Ms Rowley had created around colleagues being absent. It would have been different, she told us, if Ms Ianetta or Ms Duljeet had messaged her to say they would be walking past and had asked if they could call by. Her case was that their walking past was related to her sickness absence and had both statutory purposes, contributing to her increasingly withdrawing from activities outside the home (DD99).[109]Ms Ianetta’s evidence was that she regularly goes walking, and some of her walks would take her near the road where the Claimant lives. At BI19, she said she does not recall walking past the Claimant’s home in August 2021 with Ms Duljeet. Ms Duljeet for her part said at HD32 that she was on leave on 19 August, attending a family meal in Warrington, though the Claimant’s case was that she could have done both. The document at page 478 indicates that Ms Duljeet was indeed on leave on that day. Given that evidence we concluded that she was not one of the two people who was captured on the video; it was impossible for us to say who they were and therefore we concluded that the Claimant had not established that it was Ms Ianetta either. Ms Rowley said at HR101-2 that if she said to the Claimant on 1 June 2021 that people had said they had walked past her house, it was just general conversation, and people often walked in that region. Comment on 2 August 2021[110]During a call on 2 August 2021 (HR127-130), Ms Rowley referred to the Claimant as having “saggy” and “kinky” tubes – see the transcript at pages 995/MB112. Ms Rowley told us this was said in a jokey manner, related to previous comments made by the Claimant herself, who told her whilst laughing that this is what the radiographer/nurse had said, referring to herself in the same manner. We were not taken to any reference in the transcript to the Claimant saying the radiographer or nurse had made a similar comment; Ms Rowley told us that was her recollection before she saw the transcript, but it was clearly not said. The Claimant did accept however (DD119) that during the conversation she used the same phrase herself, repeating what Ms Rowley had said.[111]Ms Rowley’s evidence was that this was the kind of discussion she and the Claimant had on a regular basis. The Claimant was aware of her husband’s terminal brain disease and Parkinson’s diagnosis for example, and had made jokes such as it being a good job he drives an automatic car. The Claimant denied referring to this in the context of Ms Rowley’s husband’s health. It was difficult for us to be certain of course, but on balance we thought it more likely than not that the Claimant did make this comment in a darkly humorous way, chiming as it does with the tone in the Team generally, and specifically that between the Claimant and Ms Rowley, to which we have referred before. The Claimant said at DD118 that Ms Rowley made the tubes comment four times and said, “You’ll never get any sympathy out of me so there’s no point”; she said that she found it “demeaning and offensive”. Later that same day (page 440) she sent an email to Ms Rowley which began, “It was good to catch up today [adding a smiling and winking symbol]”. She made no reference to the comment. Comment on 10 September 2021[112]This complaint concerned another call – see the transcript at page 1031. Ms Rowley said to the Claimant that she had been informed by Sharon Knowles, a colleague who is also the Claimant’s friend, that the Claimant was really poorly, to which Ms Rowley had replied, “I’ve seen a picture of her, she looked alright” (Ms Rowley had been shown a picture of the Claimant on Facebook), repeating that, and then asking Ms Knowles, “Do you think she’s going to be able to come back to work if she’s like getting worse?” The Claimant said at DD126 that Ms Rowley commenting on an historic photo was dismissive of her condition; the complaint was also that the comment was made to a third party. Comment on 1 December 2021[113]As already referred to, in an email exchange on 1 December 2021, referring to a recent comment the Claimant had made in relation to going to the toilet multiple times per hour (as Ms Rowley recorded on 15 October 2021, see page 802), Ms Rowley asked if medication was helping the Claimant with this issue. The Claimant replied (page 506) saying “Yay good news, we have some improvement”, to which Ms Rowley replied in turn, “What’s the latest – are you down to 5 loo trips a day yet?” At DD166, the Claimant said she found this offensive, intrusive and humiliating, saying it took her nearly two and a half hours to reply. When she did, she said, “I’ve never been as low as 5 a day, lol”. She told us that this was sent to close down any further conversation about her toileting needs. Comment on 14 December 2021[114]During a catch-up call on 14 December 2021, the Claimant informed Ms Rowley that she was out collecting something from a shopping centre. Later that day Ms Rowley spoke to Sharon Knowles and mentioned that the Claimant had been “out shopping”, something Ms Knowles later relayed to the Claimant. The Claimant’s case is that this was a demeaning comment, given similar comments Ms Rowley had made about others when they too were off sick. At DD171, she said that it caused her concern and anxiety. Ms Rowley for her part told us she mentioned it simply because it was a fact: she said she knew the Claimant was out and about because by December the Claimant had said she was going to return to work and wanted to attend a Team meeting. General[115]Ms Rowley told us that she and the Claimant (and the team more broadly) would regularly quip with each other; they were involved in difficult work and they shared what she described as “dark humour”. She said that what the Claimant complains of was their normal way of speaking. We have made clear already that we accepted the tenor of this evidence. Homes for Ukraine[116]The Homes for Ukraine Project was something all local authorities had to take on following the Russian invasion, to assist with finding suitable accommodation for refugees. It was uncontroversial in our view that this was discussed at senior levels within the Respondent authority (HR230), given the project’s profile. Ms Rowley said at HR231-2 that the Claimant seemed the best fit to be involved in it given her request to work from home, for the medium term at least, because a senior person was needed to take it on, and also because she did not have a case load to pass over. The task involved a number of services, but Ms Rowley needed someone to lead from her Team. She emailed the Claimant about it on 23 March 2022 on the basis the Claimant would pick it up after her leave (page 814).[117]In a call with the Claimant on her return from annual leave on 4 April 2022 (HR238), Ms Rowley said that the project had been given to the Team without notice, and asked if the Claimant would work on it with certain colleagues and provide some leadership. The Claimant said at DD382, “she wanted me to set up the project and monitor it”. Ms Rowley explained to the Claimant what had been done so far and that it could all be done from home. In the transcript at page 1161 (this was another recorded call), it can be seen that Ms Rowley informed the Claimant that she wanted to fit her into the revised structure and did not want to lose her. Page 1162 shows that they also spoke about the Claimant’s holiday, the Claimant volunteering various details about what she had been up to.[118]The Claimant’s case is that she was told she would be working on the project, with no alternative being presented, and that whilst she accepts it was an important project, her role in it was just “managing a spreadsheet” (DD392). Ms Rowley told her it involved financial reporting, and that the Claimant would take a lead role, though the Claimant told us this would only be in relation to Case Managers, not a wider team. Ms Rowley explained to us that this was a role which could be done from home because although the Claimant would have been leading a team it was not the same as supervising Case Managers on case work.[119]The Claimant agreed in evidence that this would have been only a temporary change in duties (it was described by Ms Rowley as short term (page 1156)), but no timescale was specified and the Claimant told us she felt coerced into it. Having heard what Ms Rowley had to say, the Claimant replied (page 1155), “Okay, yeah, have to have a look at it all first”, and again at page 1158, “Yes, I’ll have a look at that, I’ll have a look at that. Now, besides that I’ll be on duty”. The conversation ended with Ms Rowley stating she would pull together a meeting about the project with the Claimant, other colleagues and herself to chat it through, the Claimant replying “Lovely”. After the Claimant resigned later that day (see below) Ms Rowley herself took on the role the Claimant would have had in relation to the project; it is now done by a Team Manager, who is more senior than a Team Leader. Resignation[120]As reflected by EJ Platt’s List of Issues, the Claimant’s case is that by indicating she would be responsible for the Homes for Ukraine Project, the Respondent changed her role. Later in the day on 4 April, she emailed the Respondent’s Deputy CEO, Ms Rowley, Ms Duljeet and Human Resources and said: “DMBC management have acted poorly and their conduct towards me has fallen short of the required standards. My employer has committed a serious repudiatory breach of contract as a direct consequence of which I feel that I am unable to continue to work for them thus regard myself as having been dismissed because of that conduct. As a direct consequence of this poor conduct, I now consider my position at work to be untenable, leaving me with no option but to resign with immediate effect and to pursue external advice. I am concerned regarding, and my priority is my health and wellbeing; and given the impact that management actions have had on me I have not followed the formal grievance process as I do not feel that it would be beneficial to my health. Neither will it be beneficial to remain in this employment. I will supply full reasons and details of this poor conduct after I have sought external advice/representation. However, these will include but are not restricted to: being pushed out of my post whilst on sick leave and afterwards being forced to accept changes without consultation, discrimination, bullying/harassment, breach of trust/confidence, not receiving support when requested. I will arrange for the return of DMBC equipment (laptop/mobile phone), confidential paperwork, and locker key via a colleague who I will also request empties my locker to return my belongings. Either I or my representative will contact you in due course”. We were not taken to subsequent correspondence in which the Claimant supplied the full reasons she promised.[121]At DD429-433, the Claimant said she was in an untenable position, isolated from the Team and without the support of her colleagues, drained by a recurring pattern of misleading communications and changing agreements. She told us she did not pursue a grievance as she was unwilling to accept the changes being forced upon her. Alleged victimisation[122]The protected act relied on for victimisation purposes is the Claim Form presented on 12 June 2022. The alleged detriment concerns Ms Duljeet and Ms Ianetta walking past the Claimant’s house on 25 March 2023, speaking in raised voices and intimidating the Claimant, causing her to return indoors.[123]We watched a video from that date, 45 seconds in length, from the Claimant’s neighbour’s door camera. It showed two people walking on the opposite side of the street, one talking relatively loudly on their mobile phone. What was said was inaudible. The Claimant submitted that the Respondent had denied that Ms Ianetta and Ms Duljeet walked past on this date, referring to page UB47, a letter to her from the Respondent’s solicitors dated 13 June 2023, which referred to “the Respondent’s witnesses allegedly continuing to walk past your house” and describing it as an allegation that, “if true” the Tribunal would not have jurisdiction over. We did not read that as a denial by the Respondent that Ms Duljeet and Ms Ianetta walked past the Claimant’s house; it was a denial of victimisation, and of them continuing to do so. The Claimant also said in oral evidence that Ms Ianetta and Ms Duljeet were using expletives; she did not know why this was not mentioned in her statement – DD457-8. We concluded that no expletives were used: we felt sure that if they had been, the Claimant would have mentioned it before.[124]The Respondent says that the reason Ms Duljeet and Ms Ianetta walked past the Claimant’s house on this date related to travellers being in the area. There are only two people in the Respondent’s Travellers Team and Ms Ianetta said at BI21-6 that she was asked to help follow up on an illegal travel encampment. In oral evidence she indicated it was more that she and Ms Duljeet were to look out for it when they went out walking. It is clear from page 870 that they did not walk directly to where the travellers were last sighted, but Ms Ianetta told us that they walked in a loop as otherwise she would not have got her steps in. She referred to an email she sent afterwards to team members involved in dealing with the travellers to advise them the site was clear – page 665. Ms Ianetta’s evidence was that she saw the Claimant unloading shopping from her car; she did not know which was her house until then; and she was also unaware at that point of the Tribunal claim.[125]Ms Duljeet at HD37-45 also said that she and Ms Ianetta visited an illegal incursion, to see if people were still occupying the land before the matter was escalated. She explained it more as though she and Ms Ianetta were asked to go and check on the incursion. She told us she saw the Claimant unloading shopping as they walked down her road but Ms Duljeet was on the phone. She said they did not shout or try to speak with her.[126]We accepted the Respondent’s evidence as to the purpose of this walk, particularly given Ms Ianetta’s contemporaneous email. Whilst Ms Ianetta’s and Ms Duljeet’s evidence was not perfectly synchronised on this point, we have already said that we regarded them as trustworthy witnesses and it is not inconsistent that going to look for the travellers was also an opportunity to get in some steps. We could also accept that Ms Ianetta, as a newer and more junior colleague, did not know where the Claimant lived before this date, and we accepted also that she did not know of the Claim at this point.[127]The Claimant’s evidence was that the same two colleagues walked past her home regularly, up to the point at which she made her Claim to the Tribunal, then stopped doing so, until they did it again on 25 May 2023. Ms Ianetta told us she had walked down the road where the Claimant lives several times as part of her general walking all over the town centre, which again we accepted. Time limits[128]ACAS Early Conciliation took place from 9 to 17 May 2022, with the Claim Form being presented on 12 June 2022.[129]The Claimant made an application to amend the Claim to add discrimination complaints on 28 July 2023 (pages 132ff). The amendments were permitted in full by EJ Platt, on 3 November 2023 (pages 160ff).
Law
[130]Section 6(1) of the Equality Act 2010 provides that: “A person (P) has a disability if –(a) P has a physical or mental impairment, and(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities”.[131]Schedule 1 to the Act provides at paragraph 2 that “The effect of an impairment is long-term if –(a) it has lasted for at least 12 months,(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected”. Paragraph 2 goes on to say that “If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur”.[132]Schedule 1 also provides at paragraph 5 that “(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if –(a) measures are being taken to treat or correct it, and(b) but for that, it would be likely to have that effect. (2) Measures includes in particular medical treatment …”.[133]Section 212 of the Act provides that “substantial” means “more than minor or trivial”.[134]In Kapadia v London Borough of Lambeth [2000] IRLR 699, the Court of Appeal accepted a submission that it was for a claimant to prove s/he was disabled, namely that the impairment had a substantial adverse effect on his/her ability to carry out normal day-to-day activities or to prove that the impairment would have had such an effect but for the fact that measures were being taken to treat or correct the condition. Having in mind that burden, the Tribunal’s task was to look at the evidence presented to it and decide the question on the balance of probabilities.[135]Goodwin v Patent Office [1999] ICR 302 is well-established and wellregarded Employment Appeal Tribunal (“EAT”) authority for the questions to be asked in determining disability, encouraging tribunals to take an inquisitorial approach to the issue. The EAT stated that the legislation requires a tribunal to look at the evidence by reference to four different conditions. Taking account of amendments to the legislation since the decision, the questions are stated by the EAT as follows: “(1) The impairment condition. Does the applicant have an impairment which is either mental or physical? (2) The adverse effect condition. Does the impairment affect the applicant’s ability to carry out normal day-to-day activities ... and does it have an adverse effect? (3) The substantial condition. Is the adverse effect (upon the applicant’s ability) substantial? (4) The long-term condition. Is the adverse effect (upon the applicant’s ability) long-term?”. The EAT stated that it would be useful (though subsequent case law makes clear it is not essential) for tribunals to consider these questions in sequence, though it remains necessary to make an overall assessment and not “take one’s eye off the whole picture”. The EAT went on to give guidance in respect of each question. In respect of the adverse effect condition, it stated that “the focus of attention ... is on the things that the applicant cannot do or can only do with difficulty, rather than on the things that the person can do”. This should be compared with what s/he could do without the impairment.[136]In J v DLA Piper UK LLP [2010] ICR 1052, the EAT reiterated that tribunals must adopt a structured approach to questions of disability. It said that it is good practice to state separate conclusions on the questions of impairment and adverse effect, but made clear that tribunals do not have to answer the statutory questions in a rigid order. Where there is a dispute about the existence of an impairment (the focus of the EAT’s decision being on mental impairments) and where identifying it might involve difficult medical questions, the EAT said that it makes sense to make findings about whether the claimant’s ability to carry out normal day-to-day activities was adversely affected long-term and consider the impairment question in the light of those findings. If the adverse effect question is answered in the affirmative, in most cases it would follow that the claimant had an impairment.[137]We noted the following paragraphs from the 2011 Guidance on matters to be taken into account in determining questions relating to the definition of disability (“the Guidance”) in relation to the question of substantial adverse effect: 137.1. Paragraph B4 says it is important to consider whether an impairment’s effects on more than one activity, when taken together, could result in an overall substantial adverse effect. 137.2. Paragraph B6 (see also Ministry of Defence v Hay [2008] ICR 1247) says that where there are multiple impairments, any one of which would not have a substantial adverse effect, account should be taken of whether they do when they are taken together. 137.3. Paragraph B7 says that account should be taken of how far a person can reasonably [emphasis original] be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. 137.4. Paragraph B9 says account should be taken of where a person avoids doing things which, for example, cause pain or fatigue, or avoids doing something because of a loss of energy. It would not [emphasis original] be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person.[138]As indicated above, Schedule 1, paragraph 5 of the Act requires consideration of how an impairment would affect day to day activities if medical treatment ceased. According to the House of Lords decision in SCA Packaging v Boyle [2009] ICR 1056, what must be asked is what the effect of the impairment would be if treatment stopped. Whether it is likely that the impairment would have the required effect in that situation means it “could well happen” – see also paragraph C3 of the Guidance.[139]In Royal Bank of Scotland PLC v Morris [2012] UKEAT/0436/10, the EAT upheld an appeal against the tribunal’s decision that the Claimant was a disabled person. On the question of the effect of medication (what is sometimes known as “deduced effects”), the EAT found there was no explicit evidence in that case and stated, “This is just the kind of question on which a tribunal is very unlikely to be able to make safe findings without the benefit of medical evidence”. Similarly, “it would be difficult for the Tribunal to assess the likelihood of [the risk of recurrence of the required effects under paragraph 2(2) of Schedule 1] or the severity of the effect if it eventuated, without expert evidence”. The EAT concluded, “The fact is that while in the case of other kinds of impairment the contemporary medical notes or reports may, even if they are not explicitly addressed to the issues arising under the Act, give a tribunal a sufficient evidential basis to make common sense findings, in cases where the disability alleged takes the form of depression or a cognate mental impairment, the issues will often be too subtle to allow it to make proper findings without expert assistance. It may be a pity that that is so, but it is inescapable given the real difficulties of assessing in the case of mental impairment issues such as likely duration, deduced effect and risk of recurrence which arise directly from the way the statute is drafted”. We noted the obvious point that like J v DLA Piper, Morris was a case concerned with mental impairments.[140]As to whether the required effects of an impairment were long term, again the SCA Packaging judgment makes clear that where a tribunal is required to assess whether those effects are “likely” to last for at least 12 months, this means that it “could well happen”. As paragraph 2 of Schedule 1 to the Act says, and paragraph C7 of the Guidance confirms, it is not necessary for the effect to be the same throughout the period being considered. What has to be considered is whether the effects were “likely” to recur, that word again meaning “could well happen”.[141]All of the questions we had to consider, including the long-term question, had to be assessed as at the time of the alleged discriminatory treatment – Cruickshank v VAW Motorcast Limited [2002] ICR 729, EAT. The Court of Appeal said in McDougall v Richmond Adult Community College [2008] ICR 431 that in assessing the likelihood of effects lasting for at least 12 months, tribunals should only consider the evidence available at the time of the discriminatory acts. The assessment thus requires a prophecy of future events at those points, rather than recourse to actual evidence of subsequent events. This is reflected in paragraph C4 of the Guidance. In similar vein, on the question of whether the required effect had lasted 12 months, the EAT in Tesco Stores Limited v Tennant [2019] UKEAT/0167/19, held that it is the date of the alleged discriminatory act(s) at which this must be assessed, with the question being whether at that point there has been “12 months of effect”. Burden of proof[142]Section 136 of the Equality Act 2010 provides as follows: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court [which includes employment tribunals] could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision”.[143]Direct evidence of discrimination is rare and tribunals frequently have to consider whether it is possible to infer unlawful conduct from all the material facts. This has led to the adoption of a two-stage test, the workings of which were described in the annex to the Court of Appeal’s judgment in Wong v Igen Ltd (formerly Leeds Careers Guidance) [2005] ICR 931, updating and modifying the guidance that had been given by the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205. Claimants bear the initial burden of proof. The Court of Appeal held in Ayodele v Citylink Limited and anor [2017] EWCA Civ. 1913 that “there is nothing unfair about requiring that a claimant should bear the burden of proof at the first stage. If he or she can discharge that burden (which is one only of showing that there is a prima facie case that the reason for the relevant respondent’s act was a discriminatory one) then the claim will succeed unless the respondent can discharge the burden placed on it at the second stage”.[144]At the first stage, the Tribunal does not have to reach a definitive determination that there are facts which would lead it to the conclusion that there was an unlawful act. Instead, it is looking at the primary facts to see what inferences of secondary fact could be drawn from them. As was held in Madarassy v Nomura International plc [2007] IRLR 246, “could conclude” refers to what a reasonable tribunal could properly conclude from all of the evidence before it, including evidence as to whether the acts complained of occurred at all and (in the context of direct discrimination) whether there was less favourable treatment of someone in materially similar circumstances. In considering what inferences or conclusions can thus be drawn, the tribunal must assume that there is no adequate explanation for those facts.[145]Unreasonable behaviour of itself is not evidence of discrimination – Bahl v The Law Society [2004] IRLR 799 – though the Court of Appeal said in Anya v University of Oxford and anor [2001] ICR 847 that it may be evidence supporting an inference of discrimination if there is nothing else to explain it.[146]In a harassment case, the first stage of the burden of proof is particularly relevant to establishing that the unwanted conduct was related to the protected characteristic, here disability.[147]If the burden of proof shifts to a respondent, it is then for it to prove that it did not commit, or as the case may be, is not to be treated as having committed, the allegedly discriminatory act. To discharge that burden, it is necessary for a respondent to prove that the treatment was in no sense whatsoever on the prohibited ground. That would require that the explanation be adequate to discharge the burden of proof on the balance of probabilities, for which a tribunal would normally expect cogent evidence.[148]All of the above having been said, the courts have warned tribunals against getting bogged down in issues related to the burden of proof – Hewage v Grampian Health Board [2012] ICR 1054. In some cases, it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, in the absence of a satisfactory explanation, would have been capable of amounting to a prima facie case of discrimination.[149]This decision was considered by the EAT in Field v Steve Pye and Co (KL) Ltd and others [2022] EAT 68. The EAT said that where there is significant evidence that could establish that there has been discrimination, it cannot be ignored. In such a case, where a tribunal moves straight to the “reason why” question it could only do so on the basis that it has assumed the claimant has passed the stage one threshold, so that the burden was now upon the respondent in the way described above. The EAT went on to say that if at the end of the hearing the tribunal concludes that there is nothing that can suggest that discrimination has occurred and the respondent has established a nondiscriminatory reason for the impugned treatment, there would be no error of law in just answering the “reason why” question, but in fact the complaint would fail at the first stage. If having heard all of the evidence the tribunal concludes that there is some evidence that could indicate discrimination, but nonetheless is fully convinced that the impugned treatment was in no sense whatsoever because of the protected characteristic, it is permissible to reach a conclusion at the second stage only, but there is much to be said for properly grappling with the evidence and deciding whether it is sufficient to switch the burden of proof. Particular care should be taken if the reason for moving to the second stage is to avoid the effort of analysing evidence that could be relevant to whether the burden of proof should have shifted at the first stage. Direct discrimination[150]Section 39 of the Act provides: “(2) An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B’s terms of employment;(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;(c) by dismissing B;(d) by subjecting B to any other detriment”.[151]Section 13 of the Act provides, again so far as relevant, “(1) A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. Section 23 provides, as far as relevant: “(1) On a comparison of cases for the purposes of section 13 … there must be no material difference between the circumstances relating to each case. (2) The circumstances related to a case include a person’s abilities if – (a) on a comparison for the purposes of section 13, the protected characteristic is disability”.[152]In relation to the complaints of direct discrimination, the Tribunal had to consider therefore whether one of the sub-paragraphs of section 39(2) was satisfied, whether there had been less favourable treatment of the Claimant than that which would have been afforded to a comparator, and whether this was because of disability.[153]In determining whether a claimant has been subjected to a detriment, “one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to [her] detriment? An unjustified sense of grievance cannot amount to ‘detriment’” (Shamoon v Chief Constable of the RUC [2003] UKHL 11).[154]The fundamental question in a direct discrimination complaint is the reason why the Claimant was treated as she was. As Lord Nicholls said in the decision of the House of Lords in Nagarajan v London Regional Transport [1999] IRLR 572 “this is the crucial question”. Disability being part of the circumstances or context leading up to the alleged act of discrimination is insufficient.[155]Most often, the act complained of is not in itself discriminatory but is rendered discriminatory by the mental processes (conscious or otherwise) which led the alleged discriminator to act as they did. Establishing the decision-maker’s mental processes is not always easy. What tribunals must do is draw appropriate inferences from the conduct of the alleged discriminator and the surrounding circumstances. The Tribunal does not have to be satisfied that the protected characteristic was the only or main reason for the treatment. It is enough for the protected characteristic to be a significant influence, in the sense of being more than trivial (again, Nagarajan and Wong v Igen Ltd). Section 15[156]As to what constitutes “unfavourable treatment”, the Supreme Court in Williams v Trustees of Swansea University Pension and Assurance Scheme and anor [2019] ICR 230 held that it is first necessary to identify the relevant treatment and it must then be considered whether it was unfavourable to the Claimant. The Court said that little was likely to be gained by differentiating unfavourable treatment from analogous concepts such as “detriment” found elsewhere in the Act, referring to a relatively low threshold of disadvantage being needed. One could answer the question by asking whether the Claimant was in as good a position as others.[157]What caused the unfavourable treatment requires consideration of the mind(s) of the alleged discriminator(s) and thus that the reason which is said to arise from disability be more than just the context for the unfavourable treatment. In other words, the Tribunal is not to ask whether, but for what arose in consequence of disability, the Claimant would have been unfavourably treated – Robinson v Department for Work and Pensions [2020] EWCA Civ. 859. There need only be a loose connection between the unfavourable treatment and the alleged reason for it however, and it need not be the sole or main cause of the treatment, though the reason must operate on the alleged discriminator’s conscious or unconscious thought processes to a significant extent (Charlesworth v Dronsfield Engineering UKEAT/0197/16). By analogy with Igen, “significant” in this context must mean more than trivial. Whether the reason for the treatment was “something arising in consequence of the Claimant’s disability” could describe a range of causal links and is an objective question, not requiring an examination of the alleged discriminator’s thought processes – City of York Council v Grosset [2018] EWCA Civ. 1105.[158]The approach to complaints of discrimination arising from disability was considered in detail by the EAT in Pnaiser v NHS England [2016] IRLR 170: “(a) A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. (b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a section 15 case. The “something” that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport [1999] IRLR 572. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises … (d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is ‘something arising in consequence of B's disability'. That expression 'arising in consequence of' could describe a range of causal links. Having regard to the legislative history of s.15 of the Act … the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in … (f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. … (i) As Langstaff P held in Weerasinghe, it does not matter precisely in which order these questions are addressed. Depending on the facts, a tribunal might ask why A treated the Claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the Claimant's disability”. Alternatively, it might ask whether the disability has a particular consequence for a Claimant that leads to “something” that caused the unfavourable treatment.''[159]We return to questions of justification and knowledge below.[160]Section 19 of the Act provides that indirect discrimination occurs when a person(a) (A) applies to another(b) (B) a PCP that is discriminatory in relation to a relevant protected characteristic of B’s. This is the case when, according to section 19(2): (a) A applies, or would apply, [the PCP] to persons with whom B does not share the [relevant protected] characteristic [here, the Claimant’s disability or disabilities], (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,(c) it puts, or would put, B at that disadvantage, and(d) A cannot show it to be a proportionate means of achieving a legitimate aim.[161]Section 23 must be taken into account when determining the question of “group disadvantage” posed by section 19(2)(b).[162]The Claimant bears the burden of proof in respect of the first three steps in section 19(2). In Ishola v Transport for London [2020] ICR 1204, the Court of Appeal held (in the context of reasonable adjustments complaints) that the words, “provision, criterion or practice” are broad and overlapping and not to be narrowly construed or unjustifiably limited in their application. The function of a PCP is to identify what it is about the employer’s management of the employee [in that case] or its operation which causes the particular disadvantage. The Court stated, “to test whether the PCP is discriminatory or not, it must be capable of being applied to others”. The Court added, “however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination … [is] intended to address … in context, all three words carry the connotation of a state of affairs … indicating how similar cases are generally treated”.[163]In relation to the second and third steps (individual and group disadvantage), we considered the decisions in Essop v Home Office; Naeem v Secretary of State for Justice [2017] UKSC 27 and Allen v Primark Stores Limited [2022] EAT 57, in addition to Ryan v South-West Ambulance Service NHS Trust [2021] ICR 555 and drew from them the following principles: 163.1. It was for the Tribunal to determine the pool which should be used to determine whether section 19(2)(b) (group disadvantage) is satisfied. See also Grundy v British Airways plc [2008] IRLR 74 in which the Court of Appeal held that provided it tested the allegation in a suitable pool, a tribunal could not be said to have erred in law even if a different pool with a different outcome could legitimately have been chosen. 163.2. The EHRC Code states, “In general, the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively or negatively, while excluding workers who are not affected by it, either positively or negatively” – paragraph 4.18. 163.3. The pool must test the particular discrimination complained of. 163.4. More than one pool may be perfectly logical and therefore permissible. 163.5. Section 23 requires that those in the pool must not be in materially different circumstances. 163.6. The required link to establish indirect discrimination is not between the protected characteristic and the group and individual disadvantage but between the PCP and those disadvantages. 163.7. It is not necessary to establish why the PCP causes the disadvantage – the reasons for such disadvantages, if identifiable, can be many and varied and are often innocuous. 163.8. Not every member of the disadvantaged group needs to suffer the disadvantage. 163.9. The individual and group disadvantage must correspond.[164]In Pendleton v Derbyshire County Council [2016] IRLR 580 the EAT did not read “particular disadvantage” for these purposes as requiring any particular level or threshold of disadvantage. The term was “apt to cover any disadvantage” There will need to be some basis on which to conclude that this is the case, though in Homer v Chief Constable of West Yorkshire [2012] ICR 704 Baroness Hale noted that “the new formulation [in the Act] was not intended to make it more difficult to establish indirect discrimination: quite the reverse … It was intended to do away with the need for statistical comparisons where no statistics might exist. It was intended to do away with the complexities involved in identifying those who could comply [with the PCP] and those who could not and how great the disparity had to be. Now all that is needed is a particular disadvantage when compared with other people who do not share the characteristic in question. It was not intended to lead us to ignore the fact that certain protected characteristics are more likely to be associated with particular disadvantages”.[165]Dobson v North Cumbria Integrated Care NHS Foundation Trust [2021] IRLR 729 dealt with the question of judicial notice. First, there are two broad categories of matters of which judicial notice may be taken: facts that are so notorious or so well-established to the knowledge of the court or tribunal that they may be accepted without further enquiry; and other matters that may be noticed after inquiry, such as after referring to works of reference or other reliable and acceptable sources. Secondly, the court or tribunal must take judicial notice of matters directed by statute and of matters that have been so noticed by the wellestablished practice or precedents of the courts. Thirdly, the court or tribunal has a discretion and may or may not take judicial notice of a relevant matter and may require it to be proved in evidence. Finally, the party seeking judicial notice of a fact has the burden of convincing the tribunal that the matter is one capable of being accepted without further inquiry. Justification[166]We draw the following principles from the relevant case law concerned with whether a PCP is a proportionate means of achieving a legitimate aim (justified for short) – this is of course potentially relevant for both section 15 and indirect discrimination purposes: 166.1. The burden of establishing this defence was on the Respondent. 166.2. The Tribunal had to undertake a fair and detailed assessment of the Respondent’s business needs and working practices, making clear findings on why the aims relied upon were legitimate, and whether the steps taken to achieve those aims were appropriate and necessary. 166.3. What a respondent does must be an appropriate means of achieving the legitimate aims and a reasonably necessary means of doing so. In Homer it was said, approving Mummery LJ in R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, and mirroring the decision in Bilka-Kaufhaus GmbH v Weber Von Hartz [1987] ICR 110, that what is required is: first, a real need on the part of a respondent; secondly, that what it did was appropriate – that is rationally connected – to achieving its objectives; and thirdly, that it was no more than was necessary to that end. 166.4. In Hardy & Hansons plc v Lax [2005] ICR 1565 it was said that part of the assessment of justification entails a comparison of the impact upon the affected person as against the importance of the aim to the employer. It is not enough that a reasonable employer might think the treatment justified. The Tribunal itself has to weigh the real needs of the Respondent, against the discriminatory effects of the aim. A measure may be appropriate to achieving the aim but go further than is (reasonably) necessary in order to do so and thus be disproportionate. 166.5. It is also appropriate to ask whether a lesser measure could have achieved the employer’s aim – Naeem. 166.6. In summary, the Respondent’s aim must reflect a real business need; its actions must contribute to achieving the aim; and this must be assessed objectively, regardless of what the Respondent considered at the time. Proportionality is about considering not whether the Respondent had no alternative course of action, but whether what it did was reasonably necessary to achieving the aim.[167]Section 20 of the Act provides as far as relevant: “(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage”.[168]Section 21 provides: “(1) A failure to comply with the first, second or third requirement is a failure to comply with the duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person”.[169]“Substantial” in this context means “more than minor or trivial” – section 212(1) of the Act. The Tribunal’s task is to set out the nature, effects and extent of the alleged substantial disadvantage and assess it objectively. In other words, we needed to consider what it was about any PCP that put the Claimant at the alleged disadvantage. As can be seen from section 20(3), a comparative exercise was required, namely consideration of whether the PCP disadvantaged the Claimant more than trivially in comparison with others. As indicated in Griffiths v Secretary of State for Work and Pensions [2016] IRLR 216 the comparator is merely someone who was not disabled. They need not be in a like for like situation, but should be identified by reference to the PCP, so as to test whether the PCP puts the Claimant at the substantial disadvantage. The disadvantage must relate to the Claimant’s disability – see Hilaire v Luton Borough Council [2022] EAT 166.[170]The next question was whether there were any reasonable steps which the Respondent could have taken to avoid the disadvantage which were not taken. It is well known that assessing whether a particular step would have been reasonable entails considering whether there was a chance it would have helped overcome the substantial disadvantage, whether it was practicable to take it, the cost of taking it, the employer’s resources and the resources and support available to it. The question is how might the adjustment have had the effect of preventing the PCP putting the Claimant at a substantial disadvantage compared with others. This is an objective test, and the Tribunal can substitute its own view for that of the Respondent.[171]A summary of the above can be found in Environment Agency v Rowan [2008] IRLR 20, in which the EAT restated guidance on how an employment tribunal should approach such a complaint, saying that tribunals must identify: “(a) the provision, criterion or practice applied by or on behalf of an employer, or; (b) the physical feature of premises occupied by the employer; (c) the identity of non-disabled comparators (where appropriate); and (d) the nature and extent of the substantial disadvantage suffered by the Claimant.”[172]Rowan also held (at paragraph 61), subsequently approved in Rider v Leeds City Council [2012] UKEAT/0243/11 that what [the duty] envisage[s] is that steps will be taken which will have some practical consequence of preventing or mitigating the difficulties faced by a disabled person at work. It is not concerned with the process of determining what steps should be taken, thus following Tarbuck v J Sainsbury’s Supermarkets [2006] IRLR 664.[173]In Bank of Scotland v Ashton [2011] ICR 632, Langstaff J emphasised the importance in all cases of the tribunal focusing on the words of the statute and considering the matter objectively: “The Act demands an intense focus by an Employment Tribunal on the words of the statute. The focus is on what those words require. What must be avoided by a tribunal is a general discourse as to the way in which an employer has treated an employee generally or (save except in certain specific circumstances) as to the thought processes which that employer has gone through.”[174]In Project Management Institute v Latif [2007] IRLR 579, specifically paragraphs 54 to 57, the EAT held that for the burden of proof to pass to the respondent, a claimant must establish not only that the duty to make reasonable adjustments was engaged (here that there was at least one PCP causing at least one substantial disadvantage), but also that it was breached. In other words, a respondent must understand at least the broad nature of the adjustment proposed and be given sufficient detail to enable it to engage with whether it could reasonably be achieved or not. It made clear that the nature of the proposed adjustment may not be identified until after the alleged failure to implement it, and possibly not until the tribunal hearing, but a respondent must have a proper opportunity of dealing with the matter. Knowledge[175]Paragraph 20 of Schedule 8 to the Act provides: “(1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (b) [in any case referred to in Part 2 of this Schedule], that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement”.[176]Knowledge of disability is also relevant to section 15 complaints. The burden is on a respondent to show that it did not have the knowledge in question. What is reasonable for a respondent to have known is for the Tribunal to determine and will depend on all the circumstances of the case. The question is what a respondent would have found out if it had made reasonable enquiries – in other words there should be an assessment of what it should reasonably have done, but also of what it would reasonably have found out as a result (A Ltd v Z EAT 0273/18 reflecting paragraph 5.15 of the EHRC Code on Employment (2011), and dealing with knowledge of disability, though there is no reason to think the question of knowledge of disadvantage should be assessed any differently). Harassment[177]Section 40 of the Act renders harassment of an employee unlawful. Section 26 defines harassment as follows: “(1) A person(a) (A) harasses another(b) (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic [here, disability], and (b) the conduct has the purpose or effect of (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect”.[178]The Tribunal was thus required to reach conclusions on whether the conduct complained of was unwanted, if so whether it had the requisite purpose or effect and, if it did, whether it was related to disability.[179]It is clear that the requirement for the conduct to be “related to” disability entails a broader enquiry than whether conduct is because of disability as in direct discrimination. What is needed is a link between the treatment and the protected characteristic, though comparisons with how others were or would have been treated may still be instructive. In assessing whether it was related to disability, the form of the conduct in question is more important than why the Respondent engaged in it or even how either party perceived it.[180]The question of whether the Respondent had either of the prohibited purposes – to violate the Claimant’s dignity or create the requisite environment – required consideration of the alleged perpetrator’s mental processes, and thus the drawing of inferences from the evidence before us. As to whether the conduct had the requisite effect, there are clearly subjective considerations – the Claimant’s perception of the impact on her (she must actually have felt or perceived the alleged impact) – but also objective considerations including whether it was reasonable for it to have the effect on this particular Claimant, the purpose of the conduct, and all the surrounding context. That much is clear from section 26 and was confirmed by the EAT in Richmond Pharmacology Ltd v Dhaliwal [2009] ICR 724. The words of section 26(1)(b) must be carefully considered; conduct which is trivial or transitory is unlikely to be sufficient. Mr. Justice Underhill, as he then was, said in that case: “A Respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. That … creates an objective standard … whether it was reasonable for a Claimant to have felt her dignity to be violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt … …We accept that not every racially [as it was in that case] slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase…”.[181]As already indicated, it was for the Claimant to establish the necessary facts which go to satisfying the first stage of the burden of proof. If she did, then it is plain that the Respondent could have harassed her even if it was not its purpose to do so, though if something was done innocently that may be relevant to the question of reasonableness under section 26(4)(c). Violating and intimidating are strong words, which will usually require evidence of serious and marked effects. An environment can be created by a one-off comment, but the effects must be lasting. Who makes the comments, and whether others hear, can be relevant, as can whether an employee complained, though it must be recognised that is not always easy to do so. Where there are several instances of alleged harassment, the Tribunal can take a cumulative approach in determining whether the statutory test is met.[182]Section 39(4) of the Act says (as far as relevant) that: “An employer (A) must not victimise an employee of A’s (B): … (d) by subjecting B to any other detriment”.[183]Section 27 defines victimisation as follows: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because – (a) B does a protected act …”.[184]We need say nothing further on the question of what constitutes a protected act as the Respondent agreed that the Claim was a protected act. There is also no disputing that victimisation can take place post-employment – see Rowstock Ltd and another v Jessemey [2014] ICR 550.[185]No comparator is required for the purposes of a victimisation complaint, but the protected act must be the reason or part of the reason why the Claimant was treated as she was – Greater Manchester Police v Bailey [2017] EWCA Civ. 425. Again, this required consideration of the mental processes of the alleged victimisers and again the protected act need not have been the primary reason for the act in question, though it must have been more than a trivial influence on it.[186]Section 95(1)(c) Employment Rights Act 1996 (“ERA”) provides that an employee is dismissed for unfair dismissal purposes if “the employee terminates the contract … (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”. Widely known as “constructive dismissal”, the test for establishing dismissal in these circumstances is that given in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221. It is not necessary to refer to this and subsequent approving authorities in detail. It is sufficient to say that they make clear that in order to establish constructive dismissal there must have been a repudiatory breach of contract by the Respondent – in other words, conduct going to the root of the contract or which shows that the Respondent no longer intended to be bound by it; the Claimant must have resigned in response to that breach; and if the Claimant affirmed the contract after the breach, which may for example arise as a result of delay in resigning, constructive dismissal will not be made out.[187]The Claimant relied on the key implied term of trust and confidence. The term is implied into every contract of employment to the effect that an employer will not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties (Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666, Malik v BCCI SA (in liquidation) [1997] ICR 606).[188]The Claimant argued that there was a series of issues which taken together destroyed her trust and confidence in the Respondent. Any breach of the trust and confidence term is fundamental and repudiatory (Morrow v Safeway Stores plc [2002] IRLR 9). Whether there has been a breach has to be judged objectively: in the Woods case, it was said that Tribunals must “look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is that the employee cannot be expected to put up with it”.[189]It is also well-established that the matter which finally results in the employee deciding to resign (usually referred to as “the final straw”), does not have to be of itself a fundamental breach of contract, and in fact does not even have to be blameworthy behaviour by the employer at all. It must nevertheless be an act in a series whose cumulative effect is to breach the implied term, and must contribute something to that breach, however slight, although what it adds may be relatively insignificant. An entirely innocuous act will not be sufficient – Omilaju v Waltham Forest London BC [2005] ICR 481. Omilaju says in relation to final straw cases, “The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term … The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term … it must contribute something to that breach, although what it adds may be relatively insignificant … If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach … there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect”.[190]It must also be considered whether a claimant has affirmed the contract after any breach, because if she has done so, any right to accept a respondent’s repudiation of the contract by resigning and claiming to have been constructively dismissed is lost in relation to that breach. Affirmation can be express, or it can be implied from a claimant’s conduct, where she acted in a way which was only consistent with the continued existence of the contract. Delay can be evidence of affirmation, but in W E Cox Toner (International Ltd) v Crook [1981] ICR 823, the EAT held that mere delay by itself (unaccompanied by any express or implied affirmation of the contract) does not constitute affirmation of the contract; though if it is prolonged it may be evidence of an implied affirmation.[191]Underhill LJ in Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ. 978 referred to Omilaju and said that in a case concerned with a cumulative breach of the implied duty of trust and confidence, if an employee “does not resign promptly at that point but ‘soldiers on’ they will be held to have affirmed the contract. However, the point which is [made in Omilaju] is that if the conduct in question is continued by a further act or acts, in response to which the employee does resign, he or she can still rely on the totality of the conduct in order to establish a breach of the … term”. At paragraph 51 he said, again with reference to earlier cases, including Omilaju, “an employee who is the victim of a continuing cumulative breach is entitled to rely on the totality of the employer's acts notwithstanding a prior affirmation; provided the later act forms part of the series (as explained in Omilaju) it does not [emphasis original] ‘land in an empty scale’. I do not believe that this involves any tension with the principle that the affirmation of a contract following a breach is irrevocable. Cases of cumulative breach of the [implied] term … fall within the well-recognised qualification to that principle that the victim of a repudiatory breach who has affirmed the contract can nevertheless terminate if the breach continues thereafter. It is true that … the correct analysis in such a case is not that the victim can go back on the affirmation and rely on the earlier repudiation as such: rather, the right to terminate depends on the employer's post-affirmation conduct … there is nothing wrong in speaking of the right to terminate [emphasis original] being revived, by the further act, in the straightforward sense that the employee had the right, then lost it but now has it again”.[192]At paragraph 55 of his judgement, Underhill LJ suggested five questions that should be asked by a tribunal in a constructive dismissal case: “(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation? (2) Has he or she affirmed the contract since that act? (3) If not, was that act (or omission) by itself a repudiatory breach of contract? (4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the [implied] term? (If it was, there is no need for any separate consideration of a possible previous affirmation …). (5) Did the employee resign in response (or partly in response) to that breach?”.[193]The EAT considered Kaur in Williams v Governing Body of Alderman Davies Church in Wales Primary School [2020] IRLR 589 and said: “32. This helpful guidance assists Tribunals to navigate through one particular possible permutation of the [branches] of the decision tree. Some other possible permutations are relatively straightforward. If the answer to Underhill's LJ question two is "yes", then the claim of constructive dismissal must fail. If the answer to question three is "yes" then the Tribunal should proceed to question five. 33. As I understand it the parenthetical "if it was" following question four, conveys that it is an affirmative answer to that question that will also take the Tribunal to question five. However, what if the answer to question four is "no"? That is the scenario with which this ground of appeal in the present case is concerned. The answer is, that if the most recent conduct was not capable of contributing something to a breach of the Malik term, then the Tribunal may need to go on to consider whether the earlier conduct itself entailed a breach of the Malik term, has not since been affirmed, and contributed to the decision to resign”.[194]In summary, it is not necessarily the case that a claimant was not dismissed where the last straw was entirely innocuous if they have not affirmed the contract where there was a prior fundamental breach.
Analysis
[195]As already stated, the Respondent’s concession of disability (and knowledge of disability) for the period from 11 January 2022 was based on the substantial adverse effects of frequency and urgency of urination, what the Tribunal would probably have found the position to be in the absence of medication treating those symptoms, and an acceptance that by that point the effects were likely to last 12 months or for the Claimant’s lifetime because medication had not resolved the issue and the impact had lasted 8 or 9 months.[196]For the disputed period of 11 February 2021 to 10 January 2022, the Respondent conceded that the Claimant had the three impairments (Mr Mellis’ submissions at paragraph 61). It disputed however that they had a substantial adverse effect on the Claimant’s ability to carry out normal daily activities and that any such effect was long-term. In truth of course, its concession meant that, notwithstanding the other points of detail set out in Mr Mellis’ submissions, the Respondent really only disputed the “long-term” part of the definition of disability during the earlier period. This is because if it accepted there had been 8 or 9 months of substantial adverse effect by January 2022, then the parties agree that there was a substantial adverse effect from at least May 2021.[197]The question was therefore whether the Claimant had established that at a point before January 2022, there was a substantial adverse effect which had lasted for at least 12 months, was likely to last for at least 12 months, or likely to last for the rest of her life, and if she had, when was that? We noted that if an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if it is likely to recur. We also noted that it would be an error to conclude from the existence of the impairments that they had the required long-term effect. That is well illustrated in this particular case by the fact that all three impairments can be asymptomatic. One must look at what the substantial adverse effects were and whether those effects (not the impairment) were long-term.[198]Looking first therefore at the period before the long absence which began in February 2021, the only evidence drawn to our attention regarding the Claimant’s medical position was that she had two or three UTIs per year, causing pain for two or three weeks at a time. As just said, an impairment has a substantial adverse effect even if the effect is not in fact continuous, but is likely to recur. A substantial adverse effect that arises during three episodes a year, for a few weeks of the year in total, might be enough for this purpose, depending on the details.[199]What was lacking in this case however was any evidence of the impact on the Claimant’s normal daily activities during the recurrent UTIs before February 2021, and/or what the impact would have been without medication. It was clearly not the same kind of order of impact as occurred during the year of absence, so that we could draw no conclusions about this earlier period from what happened in that year. The only specific point the Claimant made about the earlier period was that she had adjustments to be able to engage in martial arts. We were doubtful whether that could properly be said to be a normal daily activity, but even if it was, it was not of itself sufficient evidence to lead to a conclusion that the impairments had a substantial adverse effect on the Claimant’s ability to carry out normal day to day activities. We could understand why the Claimant focused in her impact statement on the period of her absence, but we could only make our decision based on the evidence to which we were taken, it was obviously not for us to fill in any gaps in her case (even taking the required inquisitorial approach to disability), and thus substantial adverse effect was not made out for the period prior to the absence which began in February 2021.[200]Turning to the absence period itself, as we have said, the Respondent conceded there was a substantial adverse effect on normal day to day activities as a result of the Claimant’s urinary symptoms from at least May 2021. We have spelt out our findings as to the broader symptoms experienced by the Claimant, specifically nausea, right-sided pain and general discomfort, with the occasional impact on her ability to do anything at all and the more general impact it had on her physical activities, frequency of going out and ability to do some basic household duties.[201]The difficulty with that broader picture, as the Respondent submitted, was that it was not possible for us to say on the evidence presented that these wider impacts, beyond the urinary frequency and urgency, were an effect of one or more of the impairments. Whilst the Respondent conceded that the urinary issues were such an effect, what caused the various other symptoms (and thus the impact these had on daily activities) remained opaque to the Claimant’s medical advisers, to the Claimant and to the Respondent for the whole of the one-year absence, with a whole variety of possible causes suggested, including the Covid vaccines. The cause thus remained opaque to us. The Claimant’s case that it was all a result of the extra-renal pelvis impairment was unsupported by any medical evidence.[202]That was sufficient to conclude that the Claimant had not established that she was a disabled person before 11 January 2022. Even if however we had assumed that all of the impacts did result from one or more of the impairments, what happened to the Claimant’s health in the long absence period was a new turn of events for her, marking a departure from the situation pre-February 2021. We repeat that it was not as simple therefore as saying that she has had the conditions all of her life: the question was what the evidence presented to this Tribunal said about the impact of the conditions during the absence period.[203]The fact that the impact (whether of the particular urinary frequency and urgency issues she faced at this time or that plus the broader constellation of issues) was a new departure means that it had not in fact lasted for a year at any point prior to January 2022. For the same reason, it could not be said in our view, based on the evidence presented to us, that at any point during the absence the particular urinary frequency and urgency issues or that plus the broader constellation of issues was likely to last for the Claimant’s lifetime. This was the first sustained period we were told of (and for which there was some evidence) in which the severity of her symptoms, and their consequent impact, were felt.[204]That left the question of whether the evidence showed that at some point during the long absence, the substantial adverse effect of the Claimant’s symptoms – whether the urinary symptoms only or the broader symptoms – was likely (in the sense that it could well happen) to last for 12 months. We concluded that the answer was no, for the following reasons: 204.1. There was no medical evidence from that period indicating the likely duration of the impact on the Claimant. The first OH report referenced the Equality Act but only in the most general and inconsequential way, namely that the congenital kidney condition(s) “might” be a disability. In fact, it also recorded that the Claimant had told OH her recent blood tests had been normal, “including her kidney and liver function” (page MB7). 204.2. The Claimant initially thought she would be back at work very quickly. 204.3. The first OH report in May described her as temporarily unfit for work which, although no timescale could be given for her return, and acknowledging of course that being disabled is not the same as being off work, suggested that the requisite effects could not be said to be long-term at that point. And of course, the urinary symptoms which became more severe later, had only just started to emerge. Whilst the first couple of fit notes referred to a UTI, that does not necessarily equate to urinary frequency and urgency as for example the GP notes make clear. 204.4. Focusing on those particular symptoms, they had plainly become significantly worse – with their obvious impact on daily life, whether constant or recurring – by August, three months later, but in the absence of anything else in the evidence, three months of effect did not admit of a conclusion that they were likely to last for 12 months. 204.5. They continued to have that impact until the Claimant’s medication started to address the issue in early December, and it was not difficult to conclude that without that medication that improvement would not have been achieved, and that the episodes of urinary urgency and frequency would have remained pronounced in effect and likely taken longer to subside. 204.6. In the absence of any other indicators however, it was not possible to identify a date or period earlier than January 2022, when the effects in question had lasted for such a period that it could properly be said that the evidence tipped towards it being likely the 12 months period of effect would be reached.[205]We concluded therefore that the Claimant had not established that she was a disabled person prior to 11 January 2022. Knowledge[206]The question of whether the Respondent had shown that it did not know nor should reasonably have known that the Claimant was a disabled person before 11 January 2022 therefore became academic. We did however go on to consider it for completeness. On the hypothetical basis therefore that the Claimant was in fact disabled between February 2021 and 11 January 2022, did the Respondent know that, or should it reasonably have known it?[207]In respect of the period before February 2021, it knew the Claimant had the first two impairments. As for knowledge – actual or constructive – of whether those impairments had a substantial adverse effect on her ability to carry out normal day to day activities: 207.1. She had a good attendance record. 207.2. She was engaged in martial arts, hiking, and regular attendance at the gym. She did not tell the Respondent of the adjustments for her martial arts, so as far as it knew, she was a full participant at a high level. 207.3. She did not say anything to the Respondent that led or could have led it to conclude that the impairments produced any adverse effect at all, let alone one that was substantial and long-term. 207.4. There was nothing which suggested to the Respondent that it should take any reasonable step to enquire further into the Claimant’s health and wellbeing. She was from its perspective to and all intents and purposes functioning well, both at work and outside of work.[208]Shortly after the Claimant went on sick leave, the Respondent found out about the extra-renal pelvis, in March 2021, although again, knowing of the impairments themselves was nowhere near sufficient to know that she was disabled, given that she explicitly said to her colleagues, at different times, that all three impairments were not necessarily symptomatic. From the point at which the long sick leave started, what else did the Respondent know? 208.1. Initially, it was told that the Claimant had experienced an adverse reaction to Covid vaccines (at the start of the absence and again in April) and that she was expected to return to work fairly quickly. 208.2. According to her fit notes and OH, she was off work because of a combination of UTIs, back pains and nausea. 208.3. The Respondent knew not long into the absence that she was seeing consultants, and over the whole of the absence it was told by the Claimant that those consultants were struggling to identify a cause for why she was experiencing these symptoms, as was the Claimant herself. 208.4. The Respondent was told by OH in May 2021 that the Claimant had reported independence with her “activities of daily living although she has help with her shopping at times … she manages short walks”, though it could not be said when she would return to work. 208.5. In June 2021, it was told that she may not be back until August. 208.6. It also knew that the urinary frequency and urgency issues the Claimant began to experience in around May 2021 became worse in August/September and continued up to November, with some improvement by 1 December 2021 because of medication.[209]Was there anything the Respondent should have done beyond what it did which means that it could reasonably be said that it would have found out any more than this? We did not think so for the following reasons: 209.1. It made a fairly early initial OH referral, in May 2021, about 3 months into the absence, when it became clear the Claimant’s prediction of an early return was not going to be fulfilled. We did not think in the light of that prediction that it should reasonably have made an earlier referral and in any event, there is no reason to think that an earlier report would have revealed anything different to what was said in May. 209.2. The second referral was agreed around four months later, after Ms Rowley’s home visit in September 2021, with the referral made in November. 209.3. There was nothing in either OH report, nor anything in what the Claimant told it, that suggested the Respondent should get a further opinion, and as just indicated, it seems highly unlikely any further report would have yielded something of value given the issues with pinpointing the cause of the Claimant’s ill health. 209.4. In addition to the OH referrals, Ms Rowley stayed in regular contact with the Claimant, including via at least one home visit.[210]Of the various substantial adverse effects the Claimant relied on, the evidence we were taken to showed that only the urinary frequency issue was communicated to Ms Rowley in their regular telephone and email discussions. There was other information in the fit notes, nausea and right-sided pain for example, but that did not tell the Respondent anything about the impact on the Claimant’s normal day to day activities and certainly did not make any clear link to one or more of the impairments.[211]As we have said on the question of disability, whilst the Claimant’s fit notes during the early part of her absence referred to UTIs, that would not of itself have suggested to the Respondent, or reasonably have caused it to conclude, that she had urinary urgency and frequency issues, with the obvious conclusions one can reach about the impact that has on daily living. From around May however, more clearly by August, the Respondent knew that in this respect the Claimant was experiencing a substantial adverse effect on her ability to carry out normal day to day activities, and had it turned its mind to the question of what the position would have been without medication to address it, the fairly obvious conclusion would have been that each episode of these effects would have been more pronounced and longer-lasting.[212]What the Respondent did not and could not reasonably have been expected to know however were two crucial things: 212.1. First, that the urinary frequency and urgency was the result of any of the impairments. OH told the Respondent that the congenital conditions made the Claimant more susceptible to UTIs, but were clear (like the Claimant) that there had been no diagnosis. The Respondent was not told therefore that it was the impairments which were giving rise to the substantial adverse effects, either by the Claimant herself or via any medical intervention. As late as Ms Rowley’s call on 27 August 2021, the Claimant confirmed she had no diagnosis, that is of what was giving rise to her urinary issues. Given the opaqueness of the outcome of the medical assessments undertaken by the Claimant throughout her absence, we did not think it could possibly be said that the Respondent should reasonably have drawn the connection to the impairments, nor that it could be said to be obvious. Ms Rowley was given a plethora of possible explanations by the Claimant, reflecting the various pieces of information with which she herself was provided by medical practitioners. 212.2. The second thing we did not think the Respondent could reasonably have been expected to know during the long absence was that the effects of any impairment were long-term in the statutory sense, even discounting medication. We relied for that conclusion on what we ourselves have said about the long-term question in this period, and noted in particular the Claimant’s professed intention to return to work soon after her absence began, the open nature of the first OH report on how long the impact of her symptoms would last, and the fact that only by December had the urinary symptoms lasted for around an 8-month period.[213]The Respondent would thus have established that it did not know and could not reasonably have been expected to know that the Claimant was a disabled person until 11 January 2022.[214]We now turn to deal with the Claimant’s substantive complaints. There was no obvious chronological way to do so – a strictly chronological analysis would have required us to jump between the various types of complaint, which would have been unhelpful. We thus dealt with direct discrimination first, then indirect discrimination, then failure to make reasonable adjustments, then discrimination arising from disability, then harassment and victimisation, before finally turning to the complaint of unfair dismissal. Direct disability discrimination[215]Our findings on disability and knowledge of disability did not impact at all on the Claimant’s complaints of direct discrimination given that they all dated from when the Respondent accepted the Claimant was a disabled person and that it knew she was. The burden of proof was therefore on the Claimant to prove facts from which we could conclude, in the absence of an adequate explanation, that she was subjected to a detriment, less favourably treated than the Respondent would have treated someone who was not disabled, and that this was because of disability. The case law is clear that a difference in treatment and protected characteristic is not enough; there must be something more, emerging from the factual matrix, to indicate that disability was a reason for the treatment, though the something more does not have to be significant. Complaint5.1.1 was withdrawn. We therefore dealt with the remainder. Complaint5.1.2 – Roofless rota can’t do days, 27 January 2022[216]This complaint had two parts: 216.1. The first was that the rota was fixed by Julie Watts on the basis of dates advised by Ms Rowley, not taking into account the Claimant’s “can’t do’s”. 216.2. The second was that when the Claimant rectified this by discussion with Ms Watts, Ms Rowley reverted to the initially notified dates.[217]For the first part of this complaint, the crucial facts were that “can’t do” dates are usually circulated a month before the rota is published, the Claimant had returned to work on 24 January 2022, the rota was circulated on 25 January and she found out on 27 January that duty rota dates had been fixed including for her. Ms Rowley told the Claimant that she had asked that she be included in the rota when Ms Watts got round to drawing it up.[218]We were not persuaded that the Claimant’s inclusion in the rota was a detriment. It was in fact to her benefit, in that it was part of Ms Rowley seeking to arrange her return to work and integrate her back into her duties. In any event, there was no evidence that Ms Rowley gave Ms Watts dates on which she should schedule the Claimant into the initial rota. In fact, at page 519, there is an email from her to Ms Watts dated 24 January asking to be told when the Claimant was allocated for duty work so that she could tell the Claimant. Her instruction to Ms Watts seems therefore simply to have been to include the Claimant in the rota. This part of the complaint failed on its facts accordingly – the Claimant did not establish that the alleged act of discrimination took place.[219]Even if Ms Rowley did suggest specific dates to Ms Watts, the fact that the Claimant’s “can’t do” dates were not taken into account when everyone else’s had been some time before, seems obviously to have been because she was off sick when the original request was circulated and not in any sense because she was disabled. The Claimant accepted that at the time the request for “can’t do” dates went out it would not have been known when she was returning to work and so in any event her colleagues were not in materially the same circumstances as her. Further, if it is said that Ms Rowley should have discussed the dates with the Claimant in the lead up to her return to work, then whilst that may have been ideal, it did not provide evidence that she failed to do so because of disability. We kept in mind how busy Ms Rowley was at this time.[220]As to the second part of the complaint, namely Ms Rowley reverting to the original dates after the Claimant had changed them: 220.1. It may have been disappointing for the Claimant, having put forward dates to avoid, to have them set aside on Ms Rowley’s instruction, but we were not told that having to work the dates Ms Rowley set was in some way problematic for her, other than that she now says she wanted non-consecutive days to rest, which she did not make clear at the time. We will come back to that substantive issue in due course, but our point here is that as a result, we were not satisfied that this was a detriment to the Claimant either, that is something she could reasonably have concluded at the time was to her disadvantage. 220.2. Even if it was, on the basis that it could be safely assumed that her colleagues’ unavailable dates were taken into account so that she was less favourably treated than them, again it is doubtful it can be said that they were in materially the same circumstances as her, in that they were not engaged in a phased return to work with their working days still to be confirmed for the month in question. 220.3. Moreover, how Ms Rowley would have treated someone in a truly comparable situation to the Claimant (the Claimant relied on any other Case Manager, specifically Sharon Knowles) was firmly indicated by the fact that that there was no evidence to which we were directed that she made these changes because the Claimant was a disabled person. Rather, she made clear to the Claimant in her email of 27 January 2022 that it was “because [what the Claimant had suggested] doesn’t really help us”, in other words, “as far I was aware you were returning to work and so should be available for work on any given day” (this was in her later email of the same date). It might have been ideal to have accommodated the Claimant’s preferred dates, but Ms Rowley not doing so was not unreasonable, let alone so unreasonable as to sensibly lead to an inference of discrimination. In short, she wanted the Claimant to do her duty slot and then be available the next day to be able to follow up any resulting work. 220.4. We also noted that the Claimant told us she felt penalised because she had taken time off and needed reasonable adjustments, but that is not the same as saying that Ms Rowley changed the dates back because of disability.[221]For both parts of this complaint, the Claimant did not prove facts from which we could conclude she had been discriminated against, and even if she had, we would have been satisfied that the decisions Ms Rowley took were in no way whatsoever because of the relevant protected characteristic. Complaint 5.1.3 – On 27 January 22, Ms Rowley included in her email to the Claimant the words, “You are returning to work and so should be available for work on any working day”.[222]This complaint was about the comment itself. We concluded that this was not a detriment to the Claimant. It was simply an expression of Ms Rowley’s view and a statement of fact, and we repeat that we were not given any evidence that at the time of these discussions the Claimant experienced anything that could concretely be called a detriment as a result of having to work the times Ms Rowley specified.[223]In any event, as to whether the Claimant proved facts from which we could conclude that she was less favourably treated (again she relied on Ms Knowles as a comparator), we had no direct evidence of what Ms Rowley would have said to someone without a disability who was also returning to work, but there was much in the evidence overall which pointed to Ms Rowley’s strong commitment to the service and her frank management style, both of which strongly suggested she would have said exactly the same.[224]Further, there was nothing put before us to suggest that this comment was made in part because the Claimant was disabled. It was said in response to her saying she may have other appointments, and we were not told that those appointments were in some way related to her disabilities.[225]Again, the Claimant did not prove facts from which we could conclude, in the absence of an adequate explanation, that this was detrimental less favourable treatment because of disability. Complaint 5.1.4 – The “can’t do” provisions not being applied to the Claimant on her return to work after annual leave on 4 April 2022, and Ms Rowley changing the duty dates back to what she had originally notified to Ms Watts[226]On its face this complaint appeared to have the same two parts as complaint 5.1.2, though that may not have been the case, as 4 April 2022 was the Claimant’s first day back after annual leave, when she resigned, so that there may not have been time for her to see the rota, raise “can’t do” dates with Ms Watts only for Ms Rowley to put them back to the original dates. We were not taken to specific evidence of that sequence of events on this occasion.[227]Even if all of that did happen however, the high likelihood is that the original compilation of the rota was what it was because the Claimant was on annual leave, so that she would not have received it – see pages 595-6, showing that she and colleagues were sent a request for “can’t do” dates on 4 March 2022 when the Claimant was away. Plainly, preparing April’s rota could not await her return a month later. Again therefore, a non-disabled comparator would have to be someone who was also absent when the rota was circulated, and that would not have been Ms Knowles. It is clear that any such person would have been treated in the same way. Moreover, even if Ms Rowley did tell Ms Watts the dates the Claimant should work (which seems unlikely given our findings as to what happened in respect of complaint 5.1.2), again this was not in any sense because of disability, but because of the needs of the service as Ms Rowley saw them.[228]In this, as with the other complaints already dealt with, the Claimant did not prove facts from which we could conclude that she was directly discriminated against. General[229]This is perhaps an appropriate juncture at which to deal with four points raised by the Claimant which she and Mr Waller suggested should lead us to draw adverse inferences against the Respondent in relation to these and other complaints: 229.1. The first was the inaccuracies in the informal log kept by Ms Rowley documenting contact during the Claimant’s absence. There were inaccuracies as we have said, though we repeat what we said in our findings of fact that it was an informal record, not an official document, and that none of the inaccuracies seemed to us to be materially related to the issues in the case or to call into question the general veracity of Ms Rowley’s evidence or give rise to any inference of discrimination. 229.2. The second was the absence of any senior officer or Human Resources representative from the list of the Respondent’s witnesses. It was however fully understandable in our view why the Respondent called the witnesses it did, namely those against whom the specific allegations were made. 229.3. The third point the Claimant raised concerned missing documents. On that we agreed with Mr Mellis’ written submissions at paragraph 11. No such document was identified which we thought materially related to the issues and there was nothing therefore which in our view could give rise to a reasonable suggestion that we should draw any adverse inference against the Respondent. 229.4. The fourth point was alleged co-ordination between the Respondent’s witnesses, the Claimant pointing out for example that all three of them referred in their statements to not being forced by the Respondent to have the Covid vaccine when the Claimant did not suggest she had been either. We accepted that this feature of the statements was somewhat unusual in that it does not appear to have been germane to the issues in the case, but the minor inconsistencies in the statements (for example between Ms Ianetta and Ms Duljeet regarding their walk to inspect the whereabouts of travellers) and how the witnesses presented to us, left us more than satisfied that they were seeking to present their respective accounts truthfully, notwithstanding this oddity.[230]In summary, none of this was sufficient in our view to give rise to an inference that disability may have been a reason for Ms Rowley’s actions in relation to any of complaints 5.1.2 to 4 or indeed any basis to draw adverse inferences in relation to the complaints analysed below. Far more relevant background in our judgment was that the evidence clearly showed that Ms Rowley was concerned about and interested in the Claimant’s absence and that she wanted her back at work. All of the complaints of direct discrimination failed for the reasons we have given.[231]It was for the Claimant to prove that a PCP was applied to her and to others who did not have her disabilities, that the PCP put or would put those who share her disabilities at a particular disadvantage compared with those who do not share her disabilities, and that it put her at that disadvantage. If she could prove facts from which we could conclude all of those things, it was then for the Respondent to prove the justification defence. In relation to the second part of what the Claimant had to prove, often referred to as group disadvantage, we noted what section 23 requires, namely a comparison between those who share her particular disability/disabilities and those who do not. PCP 1 – Not allowing anyone in the Team to work outside 9 am to 5 pm[232]The Respondent did not accept that it had this PCP and so that was the first question for us to address. We have already said that the Claimant clearly misunderstood Ms Rowley’s text of 25 January 2022 and so we need say no more about that, but Ms Rowley did say the following to the Claimant in her email of 27 January 2022: “In regard to your point about flexible working; we are a 9-5 service and as such we need people here during those hours. This has always been the case and was the case while you were at work. I appreciate that there is room for flexible working, but we have not allowed the CMs or anyone else to work in that way because it did not meet our service’s needs. The only exceptions were unless we had agreed it in advance. You are already working flexibly; your working days have been reduced. We have not discussed allowing you to work more flexible hours than have already been agreed”.[233]In light of that email, we rejected Mr Mellis’ written submissions at paragraphs 71 and 72. Ms Rowley was clear – she had not allowed anyone else to work flexibly. It was plain therefore that the PCP of not allowing the Team to work when they chose between 7.30 am and 7.30 pm was applied across the board. Skipping in this instance the question of group disadvantage, the next question therefore was whether that practice put the Claimant at a particular disadvantage as defined above. The Claimant asked us to re-read paragraphs 266 to 273 of her statement when deciding this point, which we did. What she said in the documentation she handed to the Tribunal early on in the Hearing was that management of her condition required regular breaks that could not be accommodated within a rigid working pattern. The question was whether that was established on the evidence.[234]There was no disputing that the Claimant could take breaks when needed and no suggestion that she was challenged about the breaks she was taking at any point after she returned to work. What she strongly emphasised in her oral evidence however was that she needed long breaks of up to an hour after using the toilet. We could of course see how in principle that could mean that the PCP created a particular disadvantage for her, in that she was saying she soldiered on in her working hours notwithstanding the pain, but on balance, we did not accept her evidence on this point for two reasons: 234.1. First, the OH report from an assessment on 11 January 2022, thus very shortly before her return to work, did not refer to this issue, or any requirement to deal with it, at all. What it said was that she should have, “easy access to toilet facilities, and the provision for brief breaks during the working day as required”. We noted two things about that: first there was no reference to the Claimant needing breaks after using the toilet; secondly, there was an explicit reference to her needing “brief” breaks. 234.2. Secondly, what the Claimant said at paragraph 270 of her statement is that she required flexible working to take regular breaks throughout the day. She did not say that she needed an hour-long break after using the toilet.[235]We thus rejected on the evidence presented to us the Claimant’s case that she needed hour-long breaks after using the toilet. The breaks she needed could therefore be fully and properly accommodated within a 9 am to 5 pm working pattern. We were not satisfied therefore that the Claimant had established the particular disadvantage on which she relied. As a result, the questions of group disadvantage, and of course justification, did not fall to be considered and the complaint based on this PCP failed. PCP2 – From 2 November 2021 applying a policy that the Claimant’s Team Leader role could only be done in the office and not from home[236]The Respondent accepted it had this PCP. It did not accept however that it applied it to the Claimant, as it said that she was not doing the Team Leader role during her phased return to work and was able to work from home.[237]We did not accept that argument, which seemed to us to be predicated on the notion that even had she wanted and been able to work from the office, the Claimant would not have been given the Team Leader role on her return to work. That is not what we understood the Respondent’s case presented to us to be. The point is that the role had to be done in the office, which is what led to the exploration of the Claimant doing other roles, and thus this PCP was applied to her as she contended.[238]What was the particular disadvantage to the Claimant?[239]She asked us to consider in this respect paragraphs 158 to 166 of her statement, which we thus re-read in the course of our deliberations. In the document submitted to us early in the Hearing she said that the disadvantages were that she could not return to the office at that time due first to her toileting needs – which she said was about being able to get to the toilet quickly – and secondly pain/fatigue management, specifically the need to manage the pain she experienced after using the toilet. The particular disadvantage was thus not being able to work in the office and as a result not being able to do the Team Leader role. Analysing the issue like that confirmed in our minds that the Respondent’s argument on the application of the PCP was incorrect.[240]The Claimant suggested in her statement at paragraphs 158 to 166 that the pool to test whether there was group disadvantage would be her and other Team Leaders or just her and Ms Duljeet. Those pools may be too small to test the impact of the PCP on persons with the same disabilities as the Claimant and those without, but as Mr Mellis acknowledged we might, focusing on the need to get to the toilet quickly, we thought we could take judicial notice of the group disadvantage caused by this PCP. Whatever the constitution of the overall groups for comparison, if people with the Claimant’s disability/disabilities were in one pool, and in another pool people with no or other disabilities (including people with disabilities such as IBS which impact a person’s toileting), it seems clear that those with the Claimant’s disability/disabilities would be put at a particular disadvantage, because the percentage of people with the Claimant’s disability/disabilities who could not carry out a role requiring presence in the office (given toileting concerns) would certainly be materially higher than the percentage of those in the other pool even though some of them would also be unable to do such a role for the same reason due to other disabilities.[241]The next question was whether the Claimant was put at that disadvantage. That could only have been from when she returned to work, not from 2 November 2021 when the PCP was first applied. In fact, we also noted DD347 and 353, in which she said that she performed the Team Leader role from home in her phased return in January and February 2022. This must mean that on her own case she did not experience the particular disadvantage during that period, so that she can only be complaining about what was to be the situation from 4 April 2022 after her annual leave, when she was due to start her 6-month period on reduced hours.[242]That was of course the day she resigned, precipitated – on her case – by being required to work on the Homes for Ukraine project. It might be said on this basis that she was not put at the particular disadvantage of not being able to do the Team Leader role at all, but given that it could be said that her case that she was required to do the Homes for Ukraine project was the flip side of her not being able to do the Team Leader role, we were satisfied that the question of whether the Claimant was, personally, at that disadvantage remained to be considered.[243]The first basis on which the Claimant said she was disadvantaged related to pain and fatigue management, namely the need to take substantial breaks, which she said to us she would have been more comfortable doing at home in private. We did not analyse the question of group disadvantage in this respect and were conscious that group and individual disadvantages must coincide. The difficulty with this aspect of the Claimant’s case however was the one we have already flagged up, which is that on the evidence presented to us, we did not accept that the Claimant needed the long breaks that she referred to in her oral evidence.[244]We could accept however that the Claimant having to manage toileting needs in the office would have been more difficult than doing so at home. We noted in particular that OH recommended – albeit 3 months previously in January 2022 – that she be permitted to work from home to manage her urinary symptoms and it was not difficult to see that potential embarrassment, and being seen to be regularly visiting the toilet which the Claimant also highlighted to us, were proper concerns for her. As we will come to, she did agree to do duty rota in the office in discussion with Ms Rowley on 3 March 2022 ahead of her return to work in April 2022 after annual leave, but that was for half a day only, which we did not think diminished the concerns she had about having to be in the office for all of her working hours, two and a half days per week in total.[245]The Claimant thus established group and individual disadvantage occasioned by the PCP. The remaining question was whether the Respondent had shown that the requirement for Team Leaders to work in the office was a proportionate means of achieving a legitimate aim, or (for shorthand) “justified”.[246]The aim that clearly applied here was the second one the Respondent relied upon, namely requiring Team Leaders to supervise the office, deal with customers and oversee the face-to-face customer services provided by their teams. That was the burden of what Ms Rowley said in evidence and is an aim directed essentially at providing an effective service to clients, alongside supporting team members to provide that same service. It is indisputable that this is a legitimate aim. It is why the service exists, and it must be remembered that this is a service that provides critical support to vulnerable people. The issue was therefore whether the PCP was a proportionate means of achieving that aim. That required us to address a number of questions.[247]First, did the PCP represent a real need on the part of the Respondent? That could be answered very briefly: the Respondent needed to provide the service.[248]We could see, secondly, that having Team Leaders in the office helped achieve the aim and was thus rationally connected to it. A Team Leader’s expertise and experience being on hand would clearly would help Team members make sustainable, informed, timely and consistent decisions in answering the statutory questions about whether to house a client or not. It would also assist with performance management and improvement.[249]The third question was whether the PCP was no more than was necessary to that end, which required us to balance the importance of the aim to the Respondent and its impact on the Claimant, and to ask whether a lesser measure could have achieved the aim. On the last of those points, the Claimant said only that she could have done the role from home, and so no halfway house or other measure was identified for our consideration.[250]We could certainly discount the fact that the Claimant was working from home in the Team Leader role from March 2020 to February 2021, as this was during the height of the Covid-19 pandemic when working from home was the norm – and often the only safe option – for almost all of the Team and indeed for large swathes of the population generally. As we have said, the Claimant says she was doing it from home in her phased return in January and February 2022 as well, but that was only a very short period, amounting to 10 working days, and it was evident from the conversations between the Claimant and Ms Rowley to which we were taken that the Claimant was not occupied in the Team Leader role on anything like all of these days, for example on the first couple of days back when she was occupied with catching up and had IT difficulties. Accordingly, the Claimant doing the role from home during the phased return did not weigh heavily in the balance either, that is it did not show that the Respondent did not need the role done in the office.[251]The importance of the aim for the Respondent could not be overstated, for the reasons we have given, and Ms Rowley was clear in her evidence that having the role done remotely had not worked well for the service. We could see how that would be the case, for example because, as Ms Rowley pointed out, a Team Leader working from home could not observe or overhear what other Team members were doing and intervene where needed.[252]The PCP clearly had some impact on the Claimant, in that she could not do her usual role, though as we have said, only for a day because she resigned. Even if we ignore that detail, the part-time hours she would then have been doing from home – which continued to mean that she could not do the Team Leader role – were explicitly said to be for a fixed period of 6 months, and whilst we did not know what the position would have been at the end of that period because the parties never got there, the point is that the PCP can certainly have been expected to have a time-limited impact on the Claimant.[253]Balancing all of those factors, in particular the importance of the aim against its time-limited impact on the Claimant, we were satisfied that the PCP was a proportionate means of achieving a legitimate aim. The Respondent thus made out the statutory defence and the complaint failed. PCP3 – From 3 March 2022, a policy that Case Manager duty could only be done in the office[254]The Respondent accepted that this PCP applied both generally and to the Claimant. The Claimant asked us to re-read her statement at paragraphs 339 to 362 to understand her case in this respect, which we did during our deliberations.[255]Again, the PCP could only have affected the Claimant from the date she resigned, as when the PCP was first applied, she was on annual leave. In any event, the disadvantage in relation to this complaint cannot be that she could not return to the office (as the Claimant contended in the document that she handed up to us near the start of the Hearing), for the simple reason that she agreed to do so. She says that Ms Rowley coerced her, by mentioning in the conversation on 3 March 2022 that if the Claimant could not work from the office at all, Ms Rowley would have to refer her back to OH. We did not accept that this was anything like coercion. We saw nothing inappropriate in Ms Rowley stating that she would need to get an independent view – around two months after OH had last assessed the Claimant – on whether she could work in the office or not. Ms Rowley also made clear in this conversation that if the Claimant was not well enough to come into the office on any particular day, she would not have to do so, again contradicting the Claimant’s case that she was coerced into it.[256]The situation was thus different to that which arose from PCP2, reflecting the important difference between doing half a day in the office and two and a half days in the office. The Claimant did not establish that she was put to the particular disadvantage on which she relied for this complaint, namely that she could not return to the office to do the duty cover role for half a day, because she said that she could, and had clear agreement from Ms Rowley that she would not have to do so if she had an infection. The complaint failed on that basis. It was therefore unnecessary for us to consider group disadvantage and justification.[257]In summary, all of the complaints of indirect discrimination failed for the reasons we have given.[258]We began our assessment of the complaints of failure to make reasonable adjustments by reminding ourselves that the Respondent conceded disability and knowledge of disability from 11 January 2022. All of the PCPs and substantial disadvantages on which the Claimant relied fell either entirely or substantially in the period from that date, and so nothing further need be said on those questions. The burden was on the Claimant to show that there was a PCP which put her at a substantial (more than minor or trivial) disadvantage compared to persons who were not disabled, and that there was a step which on its face was reasonable for the Respondent to take to avoid it. If she could do that, the burden would pass to the Respondent to show either that it did not know or could not reasonably have been expected to know that the Claimant was put to the disadvantage, or why the step in question was not reasonable for it to take.[259]The substantial disadvantages which the Claimant alleged she was put to by the PCPs were not set out in the List of Issues. At our request, the Claimant provided them in the form of a table, as part of the document we have mentioned she gave to us early on in the Hearing. This was helpful in structuring our deliberations.[260]We deal below with each PCP in turn, beginning with the first, which in fact consisted of two separate PCPs which we have therefore called PCP1A and PCP1B. PCP1A – Not allowing the Team Leader role to be conducted from home[261]The Claimant asked us to re-read her statement at DD160 to 165, which we did during our deliberations. As for the parallel indirect discrimination complaint, the Respondent did not accept it had this PCP, but we rejected that contention. Putting it in positive terms, the PCP was requiring the Team Leader role to be done from the office.[262]The substantial disadvantage said to be occasioned by this PCP was stated in the table to be “required me to work in the office”, the Claimant adding that this was inconsistent with advice from OH. That really only repeated the PCP, but affording her reasonable flexibility in the presentation of her Claim given that she was not professionally represented, we could safely assume that the disadvantage was the same as that for the parallel indirect discrimination complaint, namely that she could not do the Team Leader role. Although a different test based on different wording, it therefore followed from our finding that for indirect discrimination purposes this put the Claimant at a particular disadvantage that the PCP also put her at a more than minor or trivial disadvantage compared to those who are not disabled, with effect from 4 April 2022, the date of her resignation.[263]Obviously, the Respondent knew the Claimant was put at that substantial disadvantage, in that it knew that she was not able to do the Team Leader role; the remaining question therefore was whether there was a reasonable step to avoid it which the Respondent failed to take. Obviously, the step contended for by the Claimant was that the role could have been done from home.[264]As we have said in our summary of the law, whether a particular step would have been reasonable entails considering whether there was a chance it would have helped overcome the substantial disadvantage, whether it was practicable to take it, the cost of taking it, the employer’s resources and the resources and support available to it. The question was how might the adjustment have had the effect of preventing the PCP putting the Claimant at a substantial disadvantage compared with those who are not disabled. This is an objective test, and the Tribunal can substitute its own view for that of the Respondent.[265]In this instance, the step would clearly have helped, in that it would have meant the Claimant could on the face of it have carried out the Team Leader role. The Respondent did not raise cost or resource issues and so the principal question for us to consider was therefore one of practicability. For the reasons we gave in finding that the indirect discrimination this gave rise to was justified, we found that what the Claimant contended for would not have been a reasonable step. As we made clear, this conclusion is not undermined by the fact that she did the role from home during the pandemic and for a few days during her phased return, noting again in relation to the latter that in her email to Ms Rowley on 27 January 2022 (page 537) the Claimant recorded that they had agreed initially that she would be doing administrative duties and tidying up. Doing the role at home for a few days is very different from doing it for several months. In confirmation of our conclusion, we also noted that OH referred to the Case Manager role, not the Team Leader role, being done remotely, so that in fact what the Respondent did was not inconsistent with an OH recommendation as the Claimant asserted.[266]Whether analysed as the Claimant failing to show that there was an apparently reasonable step the Respondent could have taken to avoid the disadvantage, or as the Respondent showing that the step was not practicable, this complaint failed accordingly. PCP1B – Not allowing Case Manager duty to be conducted from home[267]As we have said, the Respondent accepted it had this PCP, which again put in more positive terms was requiring Case Manager duty to be done from the office.[268]The Claimant asked us to re-read her statement at DD358 to 362, which we did during our deliberations, and clarified in her table that the substantial disadvantage she relied upon was requiring her to return to work in the office, again mentioning that this was inconsistent with OH advice. Again, that simply repeated the PCP, but again we could infer that the substantial disadvantage she relied on was the same as that for the parallel indirect discrimination complaint, namely not being able to do the duty role. As we have said however, the disadvantage was not made out because, in circumstances we thought entirely proper on the Respondent’s part, the Claimant agreed on 3 March 2022 that she would work in the office for this purpose and thus was able to perform the role, and Ms Rowley had made clear that she would not have to do so if she had an infection.[269]The complaint failed on that basis, because the Claimant had not proven facts from which we could conclude that the duty to make reasonable adjustments was engaged. PCP2 – Requiring the Claimant to undertake a role on the Homes for Ukraine Project[270]The Claimant asked us to re-read her statement at paragraphs 379 to 397 in deciding this complaint, which we did. We agreed with Mr Mellis that this was not a PCP which was applied to her, for two reasons: 270.1. The first was that the Claimant was not “required” to undertake the role; we found as a fact that Ms Rowley asked her if she would work on the project. The Claimant said to us that she was told she had to do it and coerced into it, but this is contradicted by the fact that she explicitly said to Ms Rowley more than once during their conversation on 4 April 2022 that she would look at it, which must imply that she felt she had some agency in considering whether to do it and how it might play out. In other words, this was an exploratory conversation between two senior members of staff, who had worked very closely together for many years and who – certainly from Ms Rowley’s perspective – retained a good relationship. 270.2. The second reason was that whilst a generous interpretation should be applied to what amounts to a PCP, we also agreed with Mr Mellis that even if the Claimant had been required to do the role, this was a one-off action which could not properly be said to amount to a practice. It was not something that one can envisage the Respondent applying to someone else as per the decision in Ishola: it was the Claimant who Ms Rowley specifically had in mind for the specific role at this specific time.[271]The complaint failed on that basis. It would also have failed on the question of substantial disadvantage, because in her table the Claimant said the disadvantage was that she was required to work in the office. In fact, it was clear that the role could be performed remotely.[272]The Claimant did not prove facts from which we could conclude that the duty to make adjustments was engaged and the complaint failed accordingly. PCP3 – Not being allowed to work flexibly under the Respondent’s Flexible Working Policy[273]The Claimant asked us to read paragraphs 265 to 272 of her statement, which we did in our deliberations. As those paragraphs make clear, this PCP was a reference to flexible hours, i.e. the Claimant not being able to work such hours as she chose between 7.30 am and 7.30 pm.[274]For the reasons we gave when dealing with the parallel indirect discrimination complaint, the Respondent did have this PCP, and Mr Mellis accepted it could be a PCP in principle. Again, put positively rather than negatively, the PCP was requiring the Claimant to work between 9 am and 5 pm.[275]Did the PCP put the Claimant to a substantial disadvantage compared with persons who are not disabled? She said in her table that the disadvantage was as follows: “[it] prevented me working flexible hours to help manage my symptoms by taking the breaks recommended by OH through imposing a rigid 9- to-5 pattern”. The first and last part of that clarification just repeated the PCP, but the core of what the Claimant was driving at was clear, namely that she was prevented from taking the breaks she needed.[276]It will be clear from our findings on the parallel indirect discrimination complaint that we did not accept the Claimant’s case. As we have said, there was no disputing that she could take breaks when needed and no suggestion that any point following her return to work that she was challenged about the breaks she was taking. We also rejected her evidence that she needed long breaks after using the toilet. We relied on the same reasons for that conclusion as have already been given.[277]Furthermore, given what was said by OH (which the Claimant relied on in describing the substantial disadvantage), namely that she required brief breaks, and given what OH did not say, namely that the Claimant required long breaks after using the toilet, and given also that the Claimant did not tell Ms Rowley of the need for long breaks, we would have also concluded that the Respondent did not know and could not reasonably have been expected to know that the Claimant was put to the disadvantage on which she relies.[278]For these reasons, this complaint also failed. The Claimant did not prove facts from which we could conclude that the duty to make adjustments was engaged, and if it was, the Respondent established that it did not have actual or constructive knowledge of the alleged substantial disadvantage. PCP4 – Not implementing reasonable adjustments that had been agreed, namely flexible working, working two days a week [on] non-consecutive days, agreeing which [days were] working days and which days would be taken as annual leave.[279]The Claimant asked us to re-read DD240 to 265 during our deliberations on this complaint, which we did. This was a different complaint to that which relies on PCP3, in that it related to the days, not the times, when the Claimant worked.[280]Mr Mellis submitted that this was not a PCP but an alleged failure by the Respondent to do something. That was strictly correct, but again it was plain what the Claimant was driving at, namely that the Respondent had a provision, criterion or practice of requiring her to work consecutive days. It would have been inflexibility of the worst kind for us not to see that and to dismiss the complaint on that basis. The Respondent had such a practice in the Homelessness Prevention and Response Team, because we were told it not only applied to the Claimant but to a part-time worker. The practice was plainly capable of being a practice for statutory purposes.[281]Did it put the Claimant to a substantial disadvantage compared with persons who are not disabled? The Claimant said in her table that the disadvantage was that the Respondent “imposed [a] weekly working pattern during [the period when she was working] part time that prevented [her] taking annual leave on days [she] wanted and not agreeing to working non-consecutive days that would have helped manage [her] symptoms and aid [her] recovery”. Again, this partly repeated the PCP, but again the core of what the Claimant was saying was clear, namely that she was prevented from taking leave when she wanted, and impeded in managing her symptoms and recovery.[282]Taking these alleged disadvantages in turn, we did not think that not being able to take leave when the Claimant wanted was anything more than a minor or trivial disadvantage to her. She did not tell us for example that there was any medical appointment or other commitment that she was unable to meet as a result. Further, she was in precisely the same position as the part-timer, who could not choose her non-working days either, so that there was no substantial disadvantage for her compared to persons who are not disabled (we assume the part-timer was not disabled). We were also clear that anyone who had been unable to take their annual leave for a substantial period would have been in exactly the same position, noting that managers have a right to stipulate when leave should be taken, taking account of the needs of the service.[283]As to the Claimant needing to manage her symptoms and recovery by working non-consecutive days, whilst in principle not being able to do so would be a more than minor or trivial disadvantage, the complaint based on this disadvantage also failed. The contemporaneous documents showed that the Claimant said to Ms Rowley in their telephone discussion on 21 January 2022 that working non-consecutively would simply break up the week and other than a phased return, no particular working pattern was mentioned by OH either. Moreover, we noted that in the call on 21 January 2022, the Claimant herself said she was not going to do it every week.[284]In her email complaint to Ms Rowley on 27 January 2022, whilst she did say that working non-consecutive days was to “minimise any impact that [her] return would have on [her] health after being on sick leave for just under one year”, the burden of the Claimant’s concern presented to us was that Ms Rowley had not consulted her about what days she would be working; furthermore, she did not spell out for us what the impact on her health of working consecutive days was expected to be. We also noted as a subsidiary point that the Claimant agreed a fixed working pattern of two and a half consecutive days to apply from 4 April 2022. Whilst that was sometime later, the Claimant was still in a position of being unable to do her full duties, and we were not given any explanation as to how her condition had improved by this stage to such an extent that she no longer needed a pattern of non-consecutive days.[285]An analysis of that evidence very much led to the conclusion that the Claimant had not established that having to work consecutive days put her to a substantial disadvantage compared to persons who are not disabled. Again therefore, she did not prove facts from which we could conclude that the duty to make adjustments was engaged. Even if it had been, we would not have thought it a reasonable step to permit her to work non-consecutive days, given the need for the person on duty to be available for immediate support and follow up for the clients they had spoken to, with the ramifications for colleagues and clients if they were not. That conclusion would not be in the slightest bit undermined by the fact that Ms Rowley briefly agreed that the Claimant could work non-consecutive days, by approving the table the Claimant emailed to her, given that we were satisfied that she had overlooked exactly what the Claimant had proposed and had not long beforehand made clear her concerns about such a pattern.[286]If there was a third part of this alleged PCP, namely agreeing which were working days and which days would be taken as annual leave, that is what was done, so that it was not established on the facts that the Claimant was put to any disadvantage at all in this respect. If by this PCP the Claimant meant the Respondent did not agree whatever working pattern she wanted, for the reasons we have given we did not see how that would have put her to a more than minor or trivial disadvantage, nor indeed would it have been a reasonable step to do this. PCP5 – Not holding regular reviews/meetings[287]The Claimant asked us to re-read DD279 to 291 in considering this complaint, which we did. The PCP seemed to relate to not having 121s with Ms Rowley. Taking the required broad approach to determining whether there was a PCP, we were satisfied that this was capable of being such.[288]We heard no evidence on the question of whether Ms Rowley met with other colleagues on a formal basis for review purposes, but we very much anticipated that she did not, given her informal approach to managing her staff generally and her overall busyness. The Claimant says that the substantial disadvantage she was put to as a result of this approach was that Ms Rowley did not understand what tasks and working patterns would aid the Claimant’s symptom management. We could not accept that the PCP put the Claimant to this disadvantage. As Ms Rowley said, she and the Claimant spoke throughout the period of the Claimant’s return, and before it, about what work the Claimant would be and was doing, and there was a detailed email exchange about the Claimant’s working pattern. It must be remembered too that this was a very small number of working days (probably no more than eight in total during the period in question), noting again that the Claimant set out in her complaint email of 27 January 2022 that she and Ms Rowley had agreed she would do administrative tasks and tidying up initially and was agreeable to that. We also noted that the Claimant did not ask Ms Rowley for a review meeting at any stage. That was entirely unsurprising given how much they were already in contact over such a small number of working days.[289]The complaint failed on that basis. The Claimant had not proven facts from which we could conclude that the duty to make adjustments was engaged. We add in passing that the step the Claimant says should have been taken to avoid any disadvantage in this respect was “facilitating a suitable way of working”. That is very unspecific, but if it can be decoded at all, it seemed to us this was an example of the Claimant effectively saying that Ms Rowley should have agreed with whatever she wanted. That plainly would not have struck the right balance between the Claimant’s needs and the needs of the service on the question of what would have been a reasonable step.[290]As a footnote to this section of our analysis, the Claimant clarified in the document she handed up in the early part of the Hearing what she meant by step 4 (see the List of Issues at paragraph 8.5.4) namely, implementing a phased return of three months rather than four weeks. She said that because she was not permitted to do this, she had to use outstanding holiday in a five-week block, instead of working part-time over a three-month period. The Claimant did not explain how this step would have helped avoid the disadvantages she identified for our consideration flowing from the PCPs and we did not see how it would. In other words, we did not see how the period up to the end of March being configured differently to what it was (continual working interspersed with annual leave for the whole period rather than a large block of annual leave at the end of it) would have enabled the Claimant to do the Team Leader or Case Manager roles, given that the disadvantage in question in these respects only arose from the beginning of April. We could not see either how changing the format of this period would have helped the Claimant take the breaks she says she needed during working hours, assisted her recovery or enabled Ms Rowley to better understand what tasks and working patterns would aid her symptom management.[291]In summary, all of the complaints of failure to make reasonable adjustments failed for the reasons we have given. Section 15[292]The Claimant had the burden of establishing facts from which we could conclude that what she complained of was unfavourable treatment, and if it was that the reason for it was something which arose in consequence of her disability or disabilities. If she could, then the burden of proof would shift to the Respondent to show that the reason for the treatment was in no sense whatsoever something which arose in consequence of disability or that the treatment was a proportionate means of achieving a legitimate aim or, again for shorthand, justified. We begin with the question of whether the things in paragraph 6.2 of the List of Issues arose in consequence of the Claimant’s disability or disabilities: 292.1. Her absence up to 10 January 2022 cannot have arisen in consequence of disability, because we found that she was not a disabled person as defined by the Equality Act in that period. Her absence from 11 January 2022 until 24 January 2022 did, it was agreed, arise in consequence of the Claimant’s disability. 292.2. It was also agreed that the Claimant’s phased return to work from 25 January 2022 to 25 February 2022 arose in consequence of her disability. 292.3. The third thing said to arise in consequence of her disability was the taking of annual leave from 25 February 2022 to 4 April 2022 to avoid losing it, the leave having accrued during the Claimant’s sickness absence. The taking of the annual leave from 25 February 2022 was because the Claimant had not taken it during her sick leave. We have found that the Claimant was not disabled before 11 January 2022 so that nearly all of the period of absence during which the annual leave accrued did not arise in consequence of her disability. The small period of time between 11 and 24 January when it is accepted that she was on sick leave due to disability was also a period when she did not take annual leave, around 4% of the overall period, or 1.5 of the 39 days (see page 513) that the Claimant was required to take. In our judgment, it could not realistically be said that anything the Respondent did was due to the Claimant taking 1.5 days of annual leave in that period, but given that taking the 39 days’ leave from 25 February 2022 did in part arise in consequence of the Claimant’s absence which in turn arose in consequence of her disability, we considered each assertion that unfavourable treatment occurred for this reason on its merits. 292.4. We have already said that we do not accept that the Claimant was required to undertake a role on the Homes for Ukraine project, and thus this particular thing said to arise in consequence of disability was not made out on the facts.[293]Turning to the substantive complaints, as already noted, complaints 6.1.1 to 6.1.7 were withdrawn, and so we need say nothing further about those. In the table she supplied to us early in the Hearing, the Claimant clarified her case as to which things said to arise in consequence of her disability or disabilities were the reasons for each alleged instance of unfavourable treatment, which again was helpful in structuring our deliberations. Complaint 6.1.8 – From 2 November 2021 applying a policy that the Team Leader role could only be done in the office and not from home[294]We could only consider this from 11 January 2022, as the Claimant was not disabled before then and, as we have said, in fact this was only something which affected the Claimant in practice on the date of her resignation, 4 April 2022.[295]We could accept that this was unfavourable treatment, which was not a high bar for the Claimant to surmount. She wanted to do the Team Leader role, was not permitted to do it from home, and it was of some disadvantage to her to be in a position where she would not to be able to do her normal work as a result. We noted that the OH report in January 2022 was very clear that she should be permitted to work from home to allow her to manage her symptoms, saying she would struggle to return to the office until there was further improvement, although of course OH did not say which duties the Claimant should perform on that basis, and by the time the unfavourable treatment took place, almost a further three months had elapsed. There was nevertheless unfavourable treatment.[296]That said, the Claimant’s case was that the disability-related reason for the unfavourable treatment (the application of the policy) was that she had been absent, which on our analysis, could only be for two weeks in January 2022. It was plainly not the case that her absence was the reason for the treatment, even had the Claimant shown that she was a disabled person for the whole of her period of absence. It was evidently a broader policy decision that would have been implemented regardless of whether she had been on sick leave, not least given that it is agreed that it remained the case that Team Leaders had to be in the office even when colleagues in other roles were permitted to work from home from 2016. This complaint failed on that basis accordingly. The Claimant did not prove facts from which we could conclude that the unfavourable treatment was anything to do with something arising in consequence of disability.[297]In any event, we have found in the context of the indirect discrimination complaint at 7.1.2 that the policy was justified. This complaint would have failed on that ground also. Complaint 6.1.9 – Failing to follow OH advice in January 2022 in terms of adjustments to facilitate the Claimant’s return to work, and not discussing them properly with her[298]We were satisfied that this would be unfavourable treatment if true – no more need be said about that – but was the assertion on which this allegation rested an accurate reflection of what took place? First, what did OH recommend? 298.1. The first recommendation was that the Claimant work from home until there was further improvement in her health. During the four or five weeks of her phased return, this was implemented and the Claimant worked from home accordingly. By 4 April, she was to do half a day in the office, on duty, with two days at home. The Claimant agreed to that. Naturally, OH did not say what duties she should perform. Its recommendation was therefore followed. 298.2. The second recommendation was a phased return to work, commencing at 30%. It was not entirely clear to us that the Claimant started at 30%, though she did not contest that point as part of her case, but what was clear is that the Respondent implemented a phased return over four or five weeks which never got close to the Claimant being required to perform 100% of her contractual hours. We do not see how Mr Waller could contend, as we understood him to say in submissions, that OH did not recommend a four-week return. That is precisely what OH did say. This recommendation was not only implemented, but the Respondent went beyond it in a way that was supportive of the Claimant by allowing her to increase her hours more slowly than OH suggested. 298.3. The third recommendation was a temporary reduction in hours. That was of course part of the phased return, but again the Respondent went beyond that and agreed by the time the Claimant returned after using her annual leave, on 4 April, that she would work reduced hours for six months. 298.4. The final recommendation was that the Claimant have easy access to toilet facilities and brief breaks. Access to facilities was not required, as the Claimant did not in fact attend the office at any point after her return (though it seems clear there would have been easy toilet access had she done so from 4 April to carry out half a day of duty work), and there was no dispute that she could have brief breaks.[299]As to the second part of this complaint, if discussing them properly means agreeing with whatever the Claimant wanted, we did not accept that this could amount to unfavourable treatment as a matter of principle. All of these points plainly were discussed with the Claimant in one way or another.[300]The conclusion of this analysis was that the Claimant had not established the unfavourable treatment on which this complaint depended. In any event, and without any criticism of the Claimant or Mr Waller, given that lawyers too sometimes struggle to apprehend how section 15 works, it did not make sense to say that if there had been a failure to implement recommendations and discuss them with the Claimant this was in some way because she had been on sick leave in January 2022 and was undertaking a phased return as the Claimant’s table asserted. This was best illustrated by pointing out that the Respondent did not fail to implement a recommendation that the Claimant undertake a phased return to work because she was undertaking a phased return to work. The Claimant’s need for a phased return, and her sickness absence, was precisely the reason why the Respondent did implement the OH recommendations. This complaint failed for that reason also. Complaint 6.1.10 – Ms Rowley’s text of 25 January 2022 saying that the Claimant should not work outside the hours of 9 to 5 and her email of 27 January 2022 informing the Claimant that she was required to work between 9 and 5, causing her distress[301]We dealt with the first part of this complaint, namely Ms Rowley’s text to the Claimant on 25 January 2022, very quickly. As our findings of fact make clear, the Claimant has completely misconstrued the effects of the text. Ms Rowley was trying to help her by saying that she should not work outside of the regular hours of 9 am to 5 pm as she could not accrue any flexitime and would lose it. In no sense could that be said to be unfavourable treatment.[302]Turning to Ms Rowley’s email of 27 January 2022, it must be said that the Claimant did not make entirely clear what the unfavourable treatment was, but we took it that she wanted to work flexitime, so as to be able to take breaks when needed, as she told us she was in pain when needing to use the toilet. Even if that was the case, we have already made clear that we did not accept that the Claimant established on the evidence presented to us that she needed any more than the brief breaks highlighted by OH. That, and the fact that she had not raised this with Ms Rowley, meant that it was difficult to see how the comments Ms Rowley made could be construed as unfavourable to the Claimant. Ms Rowley was simply spelling out what she understood had been agreed.[303]In any event, whilst the email was sent in the context of the phased return, in that Ms Rowley was spelling out its terms, she plainly did not tell the Claimant she was to work between 9 am and 5 pm, in whole or in part because the Claimant was on a phased return to work, but because that is what the service required and how everyone was expected to work – as she said, “we have not allowed the [Case Managers] or anyone else to work in that way because it did not meet our service’s needs”.[304]Accordingly, the Claimant did not prove facts from which we could conclude that she was unfavourably treated in any way because of something arising in consequence of disability. This complaint failed. Complaint 6.1.11 – Not implementing flexible working options that the Claimant required – working from home, flexible hours, variation of duties[305]The unfavourable treatment on which this complaint relied was not made out in so far as it related to working from home and variation of duties, because the Claimant was allowed both. It was clear that she worked from home for the whole of the period of her phased return to work, and would have substantially continued to do so on the basis of the arrangements agreed for her fuller return from 4 April. She at no point said what variation of duties was discussed but then not implemented.[306]That left the question of flexible hours. In September 2021 (page 1048), Ms Rowley had said to the Claimant that she would have more flexibility if working from home on particular projects, as she would not have to do set hours and as she could “log off for a few hours” if she felt unwell. This was doubtless why the Claimant felt there was a later shift in position and thus unfavourable treatment, even though Ms Rowley did not explicitly say in September 2021 that she could work between 7.30 am and 7.30 pm. That said, as we have noted several times, the Claimant did not establish that she had a particular need to work flexible hours. Accordingly, we did not think that being denied her mere preference to do so could amount to unfavourable treatment; she was certainly not at any disadvantage compared to her colleagues in the service.[307]In any event, Ms Rowley did not require the Claimant to be available from 9 am to 5 pm because of her phased return or because she had been off sick, as the Claimant alleged in her table. Those things were in no sense in Ms Rowley’s mind in setting out what she expected of the Claimant. As we have said in relation to complaint 6.1.10, she wanted the Claimant available from 9 am to 5 pm because of the needs of the service. As Mr Mellis submitted, by the time it came to the point of pinning down what the Claimant would actually be doing on her actual return to work, the needs of the service inevitably came more sharply into focus.[308]The last part of this complaint was that Ms Rowley did not “follow through with these [flexible working options] and when challenged [denied] that [they] had been agreed”. Not following through seemed to us to equate to not implementing what the Claimant wanted. We were not satisfied that this could amount to unfavourable treatment. As for denying that certain things had been agreed, as our findings of fact make clear that is not how we read the evidence. Further, and again without any criticism of how the Claimant’s case was put, it would not be coherent to say that the reason Ms Rowley denied that certain things had been agreed was that the Claimant had been on sick leave in January 2022 or that she was on a four or five-week phased return. Not only was that not a coherent argument: we saw no evidence to suggest that Ms Rowley viewed either of those things in a negative light.[309]The complaint failed in its entirety on that basis that, again, the unfavourable treatment was not anything to do with something arising in consequence of disability. Complaint 6.1.12 – Changing the phased return from three months to four weeks, between 17 and 27 January 2022[310]The relevant findings of fact were as follows. On 17 January 2022 (page 1081), Ms Rowley said in a call with the Claimant, “we call all of the next however long it is till whenever your holiday’s used up, an extended phased return”. The Claimant said (DD202) that by 21 January however, Ms Rowley changed this agreement to a four-week phased return, stating during a call on that date (page 1091), “it won’t be a phased return after the 4 weeks, but I can argue it’s extended to allow you to use the holiday”. Ms Rowley told us that although the Respondent’s policy on phased returns permits a maximum four weeks, it was made longer in practice by using the Claimant’s accrued annual leave.[311]In our judgment there was plainly no unfavourable treatment. The actual length of the working phased return followed by the use of the Claimant’s annual leave did not change. All that changed was Ms Rowley’s use of terminology and her description of what was going to take place, reflecting that strictly speaking what went beyond the four weeks provided by the Respondent’s policy for phased returns was something else, but changing nothing in practice.[312]We add for completeness that the Claimant did not seek to argue that she had suffered a reduction in income as a result of the Respondent not permitting her to carry over her leave to a new holiday year, which might conceivably have amounted to unfavourable treatment. It was Ms Rowley’s actions in allegedly changing the goalposts, not the implementation of the Respondent’s policy on carryover of annual leave, that was the focus of this complaint. It failed because the unfavourable treatment was not established on the facts. Complaint 6.1.13 – Failing to engage sufficiently with the Claimant about management of her phased return, telling her what she had to do, and telling her when she had to take annual leave to fit in with the rest of the service and everyone else[313]This complaint seemed to break down into two parts, being first that the Claimant was told what she had to do and secondly that she was told when she had to take annual leave.[314]The first element of the complaint was far too vague to adjudicate upon without further specification by the Claimant. She identified in several other complaints various matters she disagreed with, such as having to work in the office to perform the Team Leader role and duty work, the question of being able to work flexible hours, and ultimately the insistence (as she argued) that she should work on the Homes for Ukraine project. These are dealt with separately. Nothing further was identified for us to deal with here.[315]The second element, namely being told when she had to take annual leave, seemed to us to be about working on consecutive working days, which had the consequence that the Claimant could not choose when her leave would be. We were not at all satisfied that this was unfavourable treatment. It was not what the Claimant wanted, but whilst she said to us that it was essential for her recovery, what she said to Ms Rowley at the time – as the latter made clear in her email of 27 January 2022 – was no more than that it would break up the week. To be denied that preference did not seem to us to be sufficient to be described as unfavourable, as low as that threshold is.[316]The complaint failed on that basis, but in addition, to say that what was in Ms Rowley’s mind in specifying that the Claimant should work consecutive days was that she had been on sick leave in January 2022 and was on a phased return was not logical. Nor was it in accordance with the evidence. Ms Rowley told us, in unchallenged testimony, that a part-time Case Manager was required to work her hours on consecutive days. Again therefore, what was in Ms Rowley’s mind was the needs of the service. The complaint failed on that basis also. The Claimant did not prove facts from which we could conclude in the absence of an adequate explanation that she was either unfavourably treated or that this was anything to do with something arising from disability. Complaint 6.1.14 – Ms Rowley failed to carry out a return-to-work meeting and risk assessment[317]We omitted at this point the final part of this complaint, namely that the Claimant was invited to a stage 2 disciplinary meeting, because that was dealt with under complaint 6.1.21 in detail – see below. We therefore focused on the first two parts, the failure to carry out a return-to-work meeting and risk assessment.[318]In Ms Rowley’s mind there was a return-to-work meeting – typically of her informal style, she elided it with the AMP meeting, which we will come to. We accepted nevertheless that this was unfavourable treatment of the Claimant. It was agreed that under the AMP she could legitimately expect a formal meeting with her manager on her return to work, to discuss how the return would be managed, and whilst there had been ample discussion of her return beforehand, and there was further informal discussion once the return took place, we could see that it was not helpful to the Claimant not to have this formal opportunity, particularly having been off for so long.[319]That said, the reason this happened was very obviously not that the Claimant was on a phased return as she alleged: again, that was neither logical as a proposition, nor in accordance with the evidence. As to logic, the Claimant’s phased return from sickness absence was precisely why Ms Rowley did (in her mind at least) carry out return-to-work discussions. She very obviously did not fail to carry out a return-to-work meeting because the Claimant was undertaking a phased return. As to the evidence, it showed that Ms Rowley did not carry out a formal return-to-work meeting because, rightly or wrongly, she did everything informally when managing employees with whom she had, or perceived that she had, a close relationship. Accordingly, the Claimant did not prove facts from which we could conclude that this unfavourable treatment was in any sense because of something arising in consequence of disability.[320]The question of a failure to carry out a risk assessment was not addressed at all in any of the evidence presented to us, whether in the Claimant’s witness evidence or in the documents we were taken to, so that we did not know specifically how the Claimant was saying that the absence of a risk assessment disadvantaged her. It had to follow that she did not establish the unfavourable treatment in question, so that this element of the complaint also failed. It would in any event have failed on the basis that again it did not seem to us to make sense to say that there was no risk assessment because the Claimant was on a phased return which is what this complaint alleged. The Claimant did not explain to us how she says that was the case. Complaint 6.1.15 – Having sent her email of 27 January 2022, the Claimant received a hostile response from Ms Rowley who failed to address her concerns[321]This complaint concerned Ms Rowley’s email of the same date, that is 27 January 2022. We were able to deal with it briefly.[322]We did not accept that the Claimant established the unfavourable treatment on which she relied. Objectively read, the email was not hostile in content, and we did not read it to be hostile because it was in larger font than usual. It may have been more formal than Ms Rowley’s usual manner of communication, but it cannot be described as hostile. Rather, on any fair assessment, it was polite, clear, did not use any inflammatory language and invited further discussion. Secondly it did address the Claimant’s concerns. It may not have given her the answers she wanted on all points, but it cannot be the case that a manager writing to an employee and not agreeing to everything the employee ideally wants is subjecting them to unfavourable treatment in the sense intended by the legislation.[323]Furthermore, it was not correct that Ms Rowley wrote this email because the Claimant was on a phased return. The phased return was the context for the email, but it was written in response to what the Claimant had herself raised about how she felt it was being managed.[324]The Claimant did not prove facts from which we could reasonably conclude that she was unfavourably treated, nor even if she had been that this was in any sense because of something arising from disability. It failed accordingly. Complaint 6.1.16 – Removing the Claimant’s choice about when she would take annual leave from 24 January 2022 onwards and then contacting the Claimant whilst on that leave[325]The first part of this complaint has been dealt with already under complaint 6.1.13.[326]The second part – the Claimant being contacted whilst on leave – certainly happened. It was not entirely clear however which occasions the Claimant objected to, because there were times when she clearly wanted Ms Rowley to contact her, for example regarding team changes. Further, on the Claimant’s own case (namely that this was leave she did not choose), this could only relate to the initial four or five weeks following her return to work.[327]There were one or two occasions in this period that we were alerted to (28 January 2022 was one) in relation to which Ms Rowley could not explain why she had contacted the Claimant more than once on the same day, other than to say it was the nature of their relationship, and there were doubtless other non-working days when Ms Rowley got in touch with the Claimant. We did not regard that as unfavourable treatment however in the context of first, the relationship between the two (certainly as Ms Rowley perceived it), secondly the absence of any objection to the contact from the Claimant, and thirdly the fact that to the contrary the contact between them – whether during the Claimant’s leave or otherwise – consistently seems to have involved the exchange of pleasantries and personal information.[328]In any event, again it was neither logical nor in accordance with the evidence to say that Ms Rowley contacted the Claimant when she was on leave because the Claimant was on a phased return to work or had accrued annual leave whilst off sick. Those things may in part have been the context, in the sense that the Claimant was not at work full time during her phased return, but the question for us was what was in Ms Rowley’s mind in deciding to contact her, and it was clear that it was not either of those things. What was in Ms Rowley’s mind was either the need to pass on work-related information, because she thought this would be helpful or, much more commonly, because this is just how the team functioned. They were friendly, and talked to each other outside of work, including when on leave.[329]The Claimant did not prove facts from which we could reasonably conclude that she was unfavourably treated in any sense because of something arising from disability, and the complaint failed accordingly. Complaint 6.1.17 – Ms Rowley informed the Claimant on several occasions about how much leave she and others had left to take and said that she was not bothered if she lost hers, implying disapproval of the Claimant’s need to take leave herself[330]The alleged unfavourable treatment on which this complaint relied was not established on the facts, given that we found that Ms Rowley did not disapprove of the Claimant’s need to take leave herself. In fact, it was Ms Rowley who cooperated to put in place a plan that would ensure the Claimant took the substantial leave she had accrued, in full, so that she did not lose it, and for example insisted that the Claimant should work from 9 am till 5 pm so as not to build up time owed that she could not then take off. The Claimant did not prove facts from which we could reasonably conclude that she was unfavourably treated. The complaint failed accordingly. Complaint 6.1.18 – Ms Rowley questioning the Claimant’s holiday entitlement, on 17 and 24 January 2022 after the Claimant said that she had spoken with Human Resources[331]It is correct that Ms Rowley did this, but we did not accept that it was unfavourable treatment. The Claimant put forward her view on her leave situation, and all Ms Rowley said by way of reply was that she understood that in order to crystallise the Claimant’s holiday entitlement she had to close off the sick leave and did not feel able to calculate it otherwise. This was simply a routine discussion between a manager and one of her team, and as a manager Ms Rowley was entitled to satisfy herself that the leave entitlement was correct. There was nothing in the evidence to suggest that what she said or the way she said it on this occasion was in any way improper.[332]Further and in any event, Ms Rowley did not raise these questions in any sense because the Claimant was going to be on a phased return or had been on sick leave. It was obvious to us that she raised the question because she wanted to be sure the annual leave arrangements were dealt with correctly. Again, the phased return and sick leave were the context in which the question was asked but not to any extent the reason for it.[333]The complaint failed accordingly.[334]Complaint 6.1.19 was in fact three complaints, which we dealt with in turn. Complaint 6.1.19a – The Claimant being told on 25 February 2022 that she would not be told her role or working pattern until the Team Leaders had a meeting[335]We dealt with this complaint very briefly. In fairness to the Claimant, it may be that this part of the overall complaint was intended to be no more than contextual narrative, but if it was a complaint of discrimination, it had to fail on the basis that the Claimant did not explain to our satisfaction why this was unfavourable treatment. Complaint 6.1.19b – Being excluded from a Team Leaders meeting on 2 March 2022[336]Ms Rowley sent the Claimant an invitation to the meeting and thus appears to have intended that she be aware of it, but – if the meeting took place – the Claimant did not attend because she was on leave. As the Claimant told us, she had given permission to Ms Rowley to contact her whilst she was on leave about any key developments in the Team. What she had specifically said was that Ms Rowley would need to let her know about the discussions as she was going on leave and would not be logging into work emails for five weeks, Ms Rowley saying that she would keep her posted. That is what Ms Rowley did when she updated the Claimant about the Team Leader decision the next day, and then discussed with her the implications for her role in their conversations ahead of her return at the beginning of April. With that factual context, we did not see how this could properly be said to be unfavourable treatment. We could not identify the disadvantage to the Claimant.[337]In any event, it could not sensibly be concluded that Ms Rowley fixed the meeting in this way because the Claimant had accrued annual leave during disability-related sickness absence in January 2022, which was the Claimant’s case once read through the lens of our findings on disability. First, it could not be said that she was taking any part of that one and a half days of leave on 2 March, when she had started to take the leave accrued overall during her absence back in January and continued to take it until the end of March. Secondly, and more importantly, whilst the taking of annual leave may have been the context in which a meeting was arranged in her absence, there was no evidence to suggest that Ms Rowley arranged it on 2 March in any sense because the Claimant had accrued and was taking annual leave. It was not shown for example that the meeting was deliberately arranged to coincide with the Claimant’s absence. This part of the complaint failed because the Claimant did not prove facts from which we could conclude that she was unfavourably treated in any way because of something she says arose in consequence of her disability. Complaint 6.1.19c – The Claimant being told on 3 March 2022 that Case Manager duty would need to be done in the office and that she would be referred to OH if she could not[338]This was not unfavourable treatment. The conversation transcript on pages 1130-1 showed that Ms Rowley indicated that the Claimant should attend at the office to do her half-day duty rota per week, the Claimant expressed concern about being in the office when she had an infection, and Ms Rowley made clear that if that was the case the Claimant was unwell like anyone else and would not be expected to attend. As can be seen at page 1132, the Claimant agreed to that arrangement. As we have also made clear, it could not properly be said that the comment that the Claimant would have to be referred to OH was unfavourable treatment. It was not a threat, as the Claimant sought to say. Rather, it was what an employer would be expected to do to get up to date advice, and could in fact be said to be to the Claimant’s advantage, rather than to her disadvantage, because it would help the Respondent make informed decisions in respect of her employment arrangements.[339]Further, it was not logical or in accordance with the evidence to say that Ms Rowley made this comment because the Claimant was taking annual leave, as the Claimant alleged. That was the context for the discussion but not the reason for these specific comments. This element of complaint 6.1.19 also failed, for all of those reasons. Complaint 6.1.20 – the Claimant being told on 21 March 2022 that her duties could not yet be agreed and there would be a Team Leader meeting when she returned to work after 4 April 2022[340]It was difficult to ascertain what the Claimant said the unfavourable treatment was in relation to this complaint. Mr Waller said in submissions that it was the Claimant being led to believe there had been no meeting on 2 March (we thought this was the date the Claimant intended to refer to, not 21 March) at which the Claimant’s duties had been discussed and that everything (by which he must have meant the question of the Claimant’s duties) would be decided on her return to work on 4 April. Implicit in the framing of the allegation was that the Claimant was saying this turned out not to be true. We found as a fact however that there was no decision made about the Claimant’s duties at any meeting on 2 March, except to the extent that general decisions were made that impacted the Claimant to some extent, whilst also affecting many other team members, specifically the need to be in the office when doing duty.[341]Even if this was unfavourable treatment, whilst the Claimant was on annual leave when the meeting on 2 March took place (if it did), this was the context for the comment rather than the reason for it; whatever was said on 2 or 21 March, it was not said because the Claimant had taken or was taking annual leave accrued during her sickness absence. Again, the Claimant did not prove facts from which we could conclude that any unfavourable treatment encapsulated by this complaint was in any sense because of something which she said arose in consequence of her disability. Complaint 6.1.21 – This complaint concerned the application of the AMP from 17 January 2022 to 25 February 2022. It was in six parts, each of which we dealt with in turn. Complaint 6.1.21.1 – Ms Rowley not discussing the Claimant’s Bradford Factor and the AMP before sending the Claimant the Stage 2 letter [and] the Claimant not [being] informed in advance of [receiving] a Stage 2 letter that she may have hit a trigger which was being investigated[342]The Claimant’s Bradford Factor was mentioned in her call with Ms Rowley on 2 November 2021, but we accepted that it was not discussed with her before the Stage 2 letter was sent. Was that unfavourable treatment? We concluded that it was, given that what Ms Rowley did was not compliant with what the AMP recommends and thus leads employees to expect. The AMP says (at page 957) that it is advisable to notify an employee that they have hit a trigger and that the manager will be meeting with them, and Ms Rowley did not do that.[343]What was the reason for the unfavourable treatment? The Claimant’s case was that it was her sickness absence and her being on a phased return, but again, to argue that Ms Rowley did not discuss the Bradford Factor and the AMP with her in advance of sending the letter because she was off sick (on our conclusions from 11 to 24 January 2022, but the same would be the case if the whole of the absence were taken into account) was neither logical nor in accordance with the evidence. As to the evidence, the reason Ms Rowley did not do these things is that it was her standard practice, and in all likelihood because she was so busy, and quite possibly (given she apologised to the Claimant later when sending the letter) that she did not want to do it. The fact of the Claimant being off sick was not, we were amply satisfied, in Ms Rowley’s mind at all in failing to raise these matters with her. The Claimant’s absence and phased return were the context in which Ms Rowley’s omissions arose, but neither the January (or the whole) absence nor the phased return were the reason for it.[344]As for the third element of this complaint, which is that the Claimant was told twice that her reaching the trigger for a Stage 2 letter had been discussed, it was not clear to us what the unfavourable treatment was. Further, Mr Waller conceded in submissions that it would not be an easy case to make that this was because of the Claimant’s absence and her phased return. We agree, both on the basis of logic but also because it was clear that the reason was Ms Rowley’s informal approach to managing her colleagues and nothing more.[345]The complaint failed because the Claimant did not establish facts from which we could conclude that what she complained of was due to something arising in consequence of disability. Complaint 6.1.21.2 – Sending the Stage 2 letter when the Claimant had not hit the relevant trigger[346]On balance, and it was only on balance given how quickly the letter was withdrawn, we were prepared to hold that this was unfavourable treatment.[347]Was the reason for sending the letter something which arose in consequence of disability? The Claimant argued that the reason was that she had been off sick and was undertaking a phased return. Plainly, Ms Rowley did not send the letter because the Claimant was on a phased return; it was sent when the phased return had just got underway, but very obviously the phased return had nothing to do with the sending of the letter. As to whether it was sent because of the Claimant’s absence, of course it is standard practice that these letters are sent because employees have been on sick leave for the requisite length of time, but the unfavourable treatment relied upon here is that Ms Rowley sent the wrong letter. That must be right, because the Claimant accepted that she should have received a Stage 1 letter. Analysing the complaint in that way, it was plain that Ms Rowley did not send the wrong letter because the Claimant had been off sick. She sent the wrong letter either because she wrongly believed the Claimant had hit the trigger for Stage 2 or, as we thought far more likely, because she simply headed it incorrectly. The absence was thus part of the context in which Ms Rowley made her mistake but it was not the reason for the mistake. This complaint failed because the Claimant did not establish facts from which we could conclude that the sending of the letter was in any sense due to those matters which she said arose in consequence of disability. Complaint 6.1.21.3 – No formal Stage 1 letter was sent[348]We did not accept that this was unfavourable treatment, given that Ms Rowley explicitly made clear in her corrective email that the original letter applied, just at Stage 1 not Stage 2; for all intents and purposes therefore, the Claimant got the Stage 1 letter. Her case was that the Stage 2 letter would have been on her file, but we could not accept that there was any detriment to her if that was the case, as Ms Rowley (or indeed anyone else) would have been absolutely clear when looking on the Claimant’s file, both from the corrective email and from the warning which followed shortly thereafter, which it was not disputed would also have been on the file, that the Claimant was at Stage 1 and not Stage 2 of the AMP. This particular complaint failed on that basis.[349]In any event, it was again not logical to say that Ms Rowley did not send a brand-new Stage 1 letter because the Claimant had been on sick leave and/or was on a phased return. Nor was that case in accordance with the evidence, because very obviously the reason Ms Rowley did not send a fresh letter was either that she thought she had or because her email had dealt with it. Again, the Claimant’s absence and phased return were the context but not any part of the reason for Ms Rowley’s actions. This complaint also failed therefore because the Claimant did not establish facts from which we could conclude that what Ms Rowley failed to do was in any sense because of something arising in Complaint 6.1.21.4 – The Stage 1 meeting was not completed in a timely manner (within two weeks) and only completed a month later, after the Claimant insisted it be completed before she went on annual leave for five weeks[350]Was this unfavourable treatment? The initial meeting was scheduled within the required two-week period, for 8 February 2022. The Claimant asked for it to be rearranged on 1 February, and on 8 February Ms Rowley asked which date suited her. The Claimant’s case was that Ms Rowley should have just fixed the date, by consulting her diary, rather than consulting her.[351]There was clearly a delay, of just over two weeks, and perhaps Ms Rowley could have held the meeting sooner, but we could not accept that it was unfavourable treatment to consult the Claimant directly about an alternative date rather than simply fixing it by consulting her diary. Indeed, we think it better practice to consult an employee directly about such potentially sensitive matters. Furthermore, we could not see how the delay was detrimental to the Claimant. She did not advance for example a case that the delay meant the application of the AMP was hanging over her for longer. We were not satisfied that she had established that she was unfavourably treated. The complaint failed on that basis.[352]It would have failed in any event because the Claimant’s case was that the reason Ms Rowley did not complete Stage 1 in a timely manner was the Claimant’s absence (on our analysis from 11 to 24 January 2022, but it makes no difference if the whole absence were taken into account), and the fact that she was on a phased return to work, when in fact it was plain that the reasons for Ms Rowley’s actions were twofold. First, that the Claimant sought to swap the original date for the meeting, and secondly Ms Rowley’s informal and personal approach to rearranging it, wanting to involve the Claimant in fixing the new date. Again, the Claimant’s absence and phased return were the context in which this took place but not the reason for it. The Claimant did not establish facts from which we could conclude that what happened was in any way because of something arising in consequence of disability. Complaint 6.1.21.5 – Ms Rowley did not conduct a Stage 1 disciplinary meeting as per policy on 25 February 2022[353]Mr Waller said in submissions that the unfavourable treatment here was Ms Rowley not telling the Claimant she was in a formal meeting. She did know she was invited to a formal meeting as the invitation letter made that clear, but it seems equally clear that Ms Rowley did not set out, either at the start of the meeting or when moving to discuss the AMP, that it was formal. Whilst it was difficult to see that the very fact of not announcing that the meeting was formal constituted unfavourable treatment, we could accept as a matter of principle that this could lead to unfavourable treatment, but the Claimant did not tell us what the disadvantage for her was resulting from this omission. She did not say for example that there were matters she would have raised in a formal context that might have meant the warning was not issued. Moreover, she did not say how a formal way of conducting the meeting would have been better for her than the informal way in which Ms Rowley dealt with it. We thought it clear that a more formal approach cannot be assumed to be more favourable, making the informal approach taken unfavourable, because the latter may in many senses be kinder to employees and easier for them to deal with. We also noted that the Claimant did not appeal the warning, which notwithstanding her case that she did not have the strength to do so, very much suggested that she did not regard the meeting at the time in an unfavourable light. This complaint failed because the Claimant had not established that Ms Rowley treated her unfavourably in this regard.[354]Moreover, whilst the Claimant’s absence (whether on our analysis, from 11 to 24 January 2022 or otherwise), and her being on a phased return, was the context in which the meeting took place, it is not the case that Ms Rowley did not tell the Claimant she was in a formal disciplinary meeting because she had been on sick leave and/or was on a phased return. Again, without wishing to seem critical of the Claimant or Mr Waller, there was considerable difficulty with the logic of that proposition. Further, it was not supported by the evidence. The reason Ms Rowley did what she did was that this is what she always did, and because of how she at least viewed the relationship she had with the Claimant. The complaint would also have failed because the Claimant did not establish facts from which we could conclude that the treatment in question was in any sense due to something arising in consequence of disability. Complaint 6.1.21.6 – Ms Rowley not advising the Claimant on 3 March 2022 that their meeting was a continuation of a formal disciplinary meeting[355]Was this unfavourable treatment? The Claimant could perhaps complain that the letter inviting her to the formal meeting did not apply to this particular conversation. Moreover, again, Ms Rowley did not set out, either at the start of the meeting or when moving to discuss the AMP, that the discussions were now formal. Again, we could accept as a matter of principle that this might lead to unfavourable treatment, but again the Claimant did not tell us what the disadvantage for her was. To repeat what we have already said, the Claimant at no point suggested for example that there were matters she would have raised in a formal context that might have meant the warning was not issued, she did not say how a formal way of conducting the meeting would have been better for her than the informal way in which Ms Rowley dealt with it, a more formal approach very obviously cannot be assumed to be more favourable than an informal one, and the Claimant did not appeal the warning. The Claimant did not establish that Ms Rowley treated her unfavourably and the complaint failed on that basis.[356]We pause at this point to say in passing that, whilst we understood why she took an informal approach, it was not good practice on Ms Rowley’s part either on 25 February or 3 March not to make clear the formal nature of the discussion, or part thereof. Notwithstanding the potential benefits of a more informal approach, clarity about what is being discussed and in what context is advisable.[357]Returning to the complaint, it would also have failed because the Claimant did not establish facts from which we could conclude that the reason for Ms Rowley’s actions were the things which the Claimant said arose in consequence of her disability, namely her absence (whether from 11 to 24 January 2022 or the whole of her absence), and her phased return. Again, those things provided relevant context, but it was not the case that Ms Rowley did not tell the Claimant she was in a formal disciplinary meeting because she had been on sick leave and was on a phased return. We repeat in that respect our conclusions under complaint 6.21.1.5. Complaint 6.1.22 – Isolating the Claimant from trying to re-engage with the Team[358]This was another complaint that broke down into multiple parts, this time four. Complaint 6.1.22(a) – Failing to provide a Team meeting date when requested on 1 December 2021[359]We remained somewhat unclear about what the unfavourable treatment was said to have been. What the List of Issues suggested was that the Claimant made a request about a Team meeting date on 1 December 2021, but the Particulars of Claim (page 26) said, “Despite the numerous catch ups Hayley Rowley had failed to inform me of this team meeting – which would have been the first whole team meeting in well over a year, and I had been informed of this meeting by a team member”. Accordingly, it seemed that the unfavourable treatment was Ms Rowley not telling the Claimant about a Team meeting fixed for 1 December 2021 and the Claimant finding out about it from a colleague instead.[360]Was this unfavourable treatment? We could just about accept that it was; the Claimant felt that Ms Rowley had kept her out of the loop, at a point at which they were actively discussing a fairly imminent return to work. That said, the complaint had to fail because Ms Rowley’s failure to tell the Claimant about the meeting could not have been because the Claimant was on sick leave from 11 to 24 January 2022, and/or on a phased return – the things arising from disability that the Claimant relied on – because neither of those things had happened as at 1 December 2021. Complaint 6.1.22(b) – Failing to include the Claimant in Case Manager weekly team meetings on her return to work[361]Ms Rowley was again the alleged discriminator, but she did not arrange the meetings in question. The complaint failed on that basis.[362]Further, we struggled again with the logic of saying that the Claimant was not included in the meetings because she had been on sick leave and/or because she was undertaking a phased return. She did not lead any evidence to suggest that, nor did she explain how that was the case. Accordingly, the complaint would also have failed because the Claimant had not established facts from which we could conclude that the treatment in question was even in part due to something arising in consequence of disability. Complaint 6.1.22(c) – Failing to discuss with the Claimant how her return to work would be communicated to the Team[363]The Claimant did not tell us precisely what the unfavourable treatment for this complaint was, except to say that she turned up for work on her first day back and no-one was aware of it. She did not explain why that was to her disadvantage, and it was clearly not for us to guess or make a case as to what the disadvantage was. It was also relevant to note that we were not taken to any evidence that the Claimant mentioned to Ms Rowley in their extensive discussions about her return that this was something she wanted. The complaint failed on the basis that unfavourable treatment was not made out.[364]In any event, the Claimant said that the reason for the treatment was her being on sick leave (on our analysis from 11 to 24 January 2022, but it makes no difference if the whole absence is taken into account) and/or on a phased return. Plainly, the reason cannot have been the phased return as this had not happened by the time of the treatment in question. The phased return was under discussion of course, but again without any criticism of the Claimant or Mr Waller, it did not make sense to say that the reason Ms Rowley did not discuss with the Claimant how her return to work would be communicated to the Team was that she was on a phased return. On the evidence, the Claimant did not establish facts from which we could conclude that the failure in question was because of her sickness absence either. It was plain that Ms Rowley was simply taking her standard approach whenever anyone had been away from the workplace and was returning; they were in regular contact and the Claimant had not asked her to depart from that practice. Again therefore, whilst the sickness absence was the context in which the failure to make an announcement took place, it was not a reason for the failure which operated on Ms Rowley’s mind, consciously or otherwise.[365]Accordingly, even if the Claimant had established that she was unfavourably treated, the complaint would have failed because she did not establish facts from which we could conclude that it was in any sense due to something arising in Complaint 6.1.22(d) – Failing to communicate the Claimant’s return to work to the Team[366]This was the concomitant of complaint 6.1.22(c). We noted again that the Claimant did not tell us what the disadvantage to her was, except to say that she turned up for work and no-one was aware of it, and again, we were not taken to any evidence that the Claimant mentioned to Ms Rowley in their extensive discussions about her return that this was something she wanted. The Claimant may have appreciated a communication to the Team, but that was not sufficient to establish unfavourable treatment and so this complaint too failed on that basis.[367]Otherwise, our analysis was the same as for complaint 6.1.22(c), so that it would also have failed on the basis that the Claimant had not established facts from which we could conclude that the failure to communicate her return to work was in any sense due to something arising in consequence of disability. We would add as a footnote that it would have been good practice for Ms Rowley to proactively discuss with the Claimant whether she wanted some form of communication to the Team about her return after such a long absence. This is something Ms Rowley may wish to bear in mind for future such cases – provided of course an employee wants that to happen. Complaint 6.1.23 – Giving the Claimant’s role temporarily to Gillian Davies whilst the Claimant was on sick leave, and allowing her to retain the Claimant’s job and responsibilities on the Claimant’s return to work on 4 April 2022[368]Mr Waller very sensibly said in submissions that in fact the Claimant had no objection to her role being given to Ms Davies whilst she was on sick leave. As a matter of practicality, that must be right. That part of the complaint failed therefore on the agreed basis that there was no unfavourable treatment in that regard, or if there was it was plainly justified.[369]We focused therefore on the second part of this complaint, namely that Ms Davies was allowed to retain the Claimant’s job and responsibilities on the Claimant’s return to work on 4 April 2022.[370]Mr Waller clarified that what the Claimant was referring to was the Team Leader role, managing Case Managers. Clearly the Claimant would have wished to retain her role, she could sensibly say that not being able to do so was to her disadvantage, and so we accepted that this was unfavourable treatment.[371]What was the reason for this treatment? The Claimant’s case was that the reason was her sickness absence (on our analysis from 11 to 24 January 2022) and the requirement that she undertake the Homes for Ukraine project. The reasons given by Ms Rowley were that the Claimant wanted to work from home for the medium term at least, which would not have enabled her to manage the Team. Ms Rowley also said that the Claimant was an experienced colleague and did not have a case load. In her call with the Claimant on 4 April 2022, she said that she wanted to fit the Claimant into the structure, their having agreed that the Claimant would be part time for six months from this point. What this boiled down to was that Ms Davies kept the Claimant’s responsibilities as Team Leader because the Claimant wanted to work from home and was going to be part-time.[372]The contemporaneous evidence, namely of the phone call on 4 April, clearly supported Ms Rowley’s case that these were the reasons she left the Claimant’s responsibilities with Ms Davies. It followed that the Claimant’s absence was not part of Ms Rowley’s thinking in doing so. Furthermore, whilst first, Ms Davies retained the Claimant’s responsibilities because the Claimant did not want to be in the office and was going to be working part-time, secondly both of these things arose in consequence of the Claimant’s disability/disabilities and thirdly this is what in turn led to Ms Rowley discussing the Homes for Ukraine project with the Claimant, this was not what the Claimant relied on as the alternative way of putting this complaint. Her case was that Ms Davies retained the Team Leader role because the Claimant was required to undertake the Homes for Ukraine project. Given that we have found that she was not required to do so, that way of putting this complaint could not be sustained. It was very obviously not for us to construct an alternative complaint that the Claimant might have sought to advance.[373]The complaint therefore failed because the Claimant did not establish facts from which we could conclude that the unfavourable treatment was in some way due to something arising in consequence of disability. We would add that it would also have failed on the alternative basis that given our conclusions on the indirect discrimination complaint relating to the Team Leader role having to be done in the office, it must follow that Ms Davies retaining that role whilst the Claimant wished to work from home was a proportionate means of achieving a legitimate aim. Complaint 6.1.24 – Requiring the Claimant to accept other responsibilities outside the Team and pressurising her to accept the role on the Homes for Ukraine project[374]The Claimant did not identify any responsibilities outside of the Team that she was required to accept, other than (on her case) the Homes for Ukraine project. When asked about this during submissions, Mr Waller said the Claimant was referring to “bits and bobs”. He was quoting Ms Rowley’s comment during her call with the Claimant on 4 April 2022 (page 1158) after they had discussed the Homes for Ukraine Project, the comment being to the effect, “So we could start looking at the other bits and bobs, you know the different statistical things because what has to happen is our lot have got to be organised enough to get the data out haven’t they?” That was plainly not something we could make a decision on, given the complete lack of specificity and the absence of any explanation of how that single comment, which was tentative at best on Ms Rowley’s part, could be said to have been unfavourable to the Claimant. Mr Waller also referred to the Claimant doing “roofless duty” but that was squarely work carried out within the Team and so could not fall within the auspices of this complaint. We thus focused only on the Homes for Ukraine project.[375]The Claimant’s complaint was that she was pressurised into working on it. We have found that in fact Ms Rowley asked if she would do so. Ms Rowley also told the Claimant it would be temporary. The Claimant’s case was that she was told she had to do it and coerced into it, but she explicitly said more than once on 4 April that she would look at it, which as we have already stated must imply that she felt from the conversation that she had some agency in considering whether to do it and how it might play out. She also did not say she did not want to do it. The Claimant may have felt some pressure internally as it were, but that was not sufficient to amount to unfavourable treatment by Ms Rowley. What we had to assess was her conduct and what she said, and we saw nothing in the parts of the conversation on 4 April 2022 (or in the discussions before then) that we were taken to where it could be said that she pressurised the Claimant into taking the role. This complaint failed on the basis that the Claimant failed to establish the unfavourable treatment on which she relied.[376]Moreover, the Claimant’s case was that the reason for this alleged unfavourable treatment – pressurising her to accept a role on the Homes for Ukraine project – was that she was required to undertake a role on that project. Without any criticism of the Claimant or Mr Waller, that clearly did not work as a matter of logic – it amounted to saying that she was pressurised to accept a role on the project because she was required to undertake a role on the project – and furthermore we have found that she was not required to take it on. The complaint would have failed for those reasons also.[377]For completeness, we add that whilst the Claimant clarified that the alleged discriminators in respect of complaints 6.1.23 and 6.1.24 were both Ms Rowley and Ms Duljeet, we saw no evidence that the latter had any involvement in either matter. That is a further reason why the complaints in respect of Ms Duljeet’s conduct had to fail. Harassment[378]All of the harassment complaints concerned events falling within the period when the Claimant was not a disabled person, that is from March to December 2021. Whilst of course one does not have to be disabled to be harassed related to disability, for example if one is harassed related to another’s disability or perhaps related to a perception of disability, that was not argued in this case and where the allegations were, as here, that the harassment related to the Claimant’s disability, we did not think that such complaints could be advanced where the Claimant was not in fact a disabled person at the time.[379]We nevertheless considered each of the complaints on their substantive merits, on the assumption for these purposes only that the Claimant was a disabled person at all relevant times. It would have been for her to prove facts from which we could conclude that there was unwanted conduct, related to disability, which had the requisite purpose or effect. And of course, whilst a Tribunal can look at the overall picture as well as the individual instances of alleged harassment on their own terms, each complaint has to be looked at separately. We thus dealt with each in turn. When we refer below to the requisite purpose or the requisite effect, this is of course a reference to whether the conduct had the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. Complaint 9.1.1 – Ms Rowley’s comment that the Claimant was “officially weird” made on 18 March 2021[380]Was this comment related to disability? Plainly it would have been, had the Claimant been a disabled person at the time.[381]Was it unwanted? We did not think that the Claimant established that it was, given: 381.1. The nature of the relationship between the Claimant and Ms Rowley, in which the Claimant had fully engaged over many years. 381.2. The fact that the Claimant started the conversation with the reference to what medical staff had said to her, and the fact that it was she who drew attention to the nature of the condition. 381.3. The fact that she did not indicate that the comment was unwanted. In fact, the opposite was the case, as we will come to on the question of whether the conduct had the requisite effect.[382]Did the conduct have the requisite purpose? We concluded that it did not because: 382.1. There was nothing in Ms Rowley’s conduct in the overall factual matrix of this case to suggest anything other than that she believed she and the Claimant were friends who could talk with each other in a very open and friendly way. 382.2. Everything in the overall factual matrix of the case suggests very clearly that she was concerned for the Claimant’s wellbeing. 382.3. The comment was typical of their banter, and of the informal way in which she – and they – conducted the relationship.[383]The comment was plainly not designed therefore to violate the Claimant’s dignity or create the requisite environment. Did it have either of those effects? We were clear that it did not: 383.1. As for the Claimant’s perception, her response to Ms Rowley’s comment – “Apparently” with a smiling symbol – strongly suggested otherwise. The Claimant’s evidence was that she was shutting the discussion down, but we did not accept that this was what she was seeking to do in sending that response. 383.2. All the circumstances of the case included that the Claimant herself drew to Ms Rowley’s attention that medical staff had commented that they had never seen the condition before. It was also relevant to note that we accepted that the Claimant had joked on a previous occasion with Ms Duljeet that she has three kidneys. 383.3. Was it reasonable for the conduct to have the requisite effect? We found that it was not in this context – namely of the Claimant’s relationship with Ms Rowley, of the tone of communications in the Team generally, and of what the Claimant herself had said in discussions with Ms Rowley before and during this particular conversation.[384]The Claimant would not have established facts from which we could have concluded that she had been harassed. Complaint 9.1.2 – Ms Rowley’s comment, “They have still not found anything wrong with your kidneys then”, made on 5 May 2021[385]First, we could not see how it could properly be said that this conduct was unwanted. Ms Rowley was effectively reflecting back to the Claimant precisely what she herself was saying, albeit in different language. Before the allegedly offending comment, the Claimant had said that acid not being flushed out of her system was not an explanation for her symptoms, the doctor could not say what the issue was, and she was waiting to see a specialist. After Ms Rowley’s comment, the Claimant replied, “No” and, “whatever it is”, she had an inflamed or enlarged extra kidney. This conversation was a back and forth about the difficulty of identifying the cause of the Claimant’s illness; Ms Rowley’s question fitted that dialogue perfectly.[386]Was the comment related to disability? Arguably, disability was the context for the comment (had the Claimant been disabled) but the comment was very clearly related to what was causing the Claimant’s illness and nothing more, and thus even taking the approach of looking for a broad connection between the comment and the disability we were not satisfied that it was established.[387]The comment very plainly did not have the requisite purpose, given that Ms Rowley was seeking to find out what the core issue was. At worst, she was expressing some confusion about what the Claimant was saying to her; in all likelihood, she was in fact expressing concern for the Claimant.[388]It did not have the requisite effect either: 388.1. We have identified above the general circumstances of the case. 388.2. As to the Claimant’s perception, she gave no indication of concern about the comment at the time, apparently happily continuing the conversation. 388.3. Given the nature of Ms Rowley’s enquiry and the content of the conversation overall, it was not reasonable for this comment to have the required effect.[389]Again, the Claimant would not have established facts from which we could Complaint 9.1.3. This complaint had three elements. The first was Ms Rowley’s comment on 1 June 2021 that Ms Ianetta had been getting her steps in walking past the Claimant’s house, the second was Ms Rowley’s text message to similar effect on 14 June 2021, and the third was that on 19 August 2021 Ms Iannetta and Ms Duljeet walked past the Claimant’s house[390]The third part of the complaint failed on the facts, as the Claimant did not establish that Ms Ianetta and/or Ms Duljeet walked past her house on 19 August 2021 as alleged. The unwanted conduct for this complaint was thus Ms Rowley saying to the Claimant on 1 and 14 June 2021 that Ms Ianetta had got her steps in walking past the Claimant’s house. We dealt with these two parts of the complaint together.[391]The Claimant’s case was that the comments were unwanted because they showed or suggested that she was being watched. She may have felt that to be the case, and of course whether conduct was unwanted is to be judged principally from her perspective, but the idea that she was being watched was entirely a matter of speculation on her part for two reasons. First, there was in truth no need for Ms Rowley to arrange for the Claimant to be watched given that she was in such frequent contact with her. Secondly, there was nothing in the evidence to suggest to us that Ms Rowley thought the Claimant’s absence to be anything other than genuine. In fact, there were several occasions when the Claimant told Ms Rowley she was doing things other than simply sitting at home, for example, being at a relative’s house, and none of that led Ms Rowley to suggest that the absence was in some way improper. Perhaps most pertinently however, sharing of information about other Team members was par for the course in conversations between these two close colleagues. For all of these reasons, we did not accept that the conduct was unwanted.[392]Were the comments related to disability? It was difficult to see how, given our rejection of the Claimant’s contention that she was being spied upon. At its highest, they were related to the Claimant being off sick in the sense that Ms Rowley was updating her about her colleagues in her absence, but that is not the same as it being related to disability.[393]Did the comments have the requisite purpose? As we have already indicated, the transcripts of their telephone calls show that Ms Rowley regularly engaged in chit chat about other members of the Team, when catching up with the Claimant. This was all this was – as Ms Rowley told us, it was just general conversation.[394]Did the comments have the requisite effect? Even if we had taken the Claimant’s stated perception at face value, and thus accepted that it was unwanted conduct, it was not objectively reasonable for it to have the requisite effect for the reasons we have already given, in particular her historic relationship with Ms Rowley and the absence of any indication that Ms Rowley doubted the truth about her need to be absent and the reasons for it. We repeat that Ms Rowley knew very well at other points in the absence period that the Claimant was out and about, without at any point challenging her about that.[395]Again, the Claimant would not have established facts from which we could Complaint 9.1.4 – Ms Rowley’s comments about the Claimant having “saggy tubes”, made on 2 August 2021[396]This complaint appeared to be related to the third impairment, so that if the Claimant had been disabled, the comment would very obviously have been related to disability.[397]Was it unwanted conduct? We noted carefully our finding that Ms Rowley was the first to use the phrase in this conversation, but it remains the case that if the Claimant did not welcome the comment, it is surprising to say the least that she herself then used it. She offered us no satisfactory explanation of why she did that, if it was unwanted conduct, and thus we found that even adopting the Claimant’s perspective, it was not.[398]Did it have the requisite purpose? Again, there was no evidence that it did. It was reflective of the relationship between Ms Rowley and the Claimant, and reflective of Ms Rowley’s style of conversation and engagement with her colleagues generally and the Claimant in particular. There was no design or intent in her mind to violate the Claimant’s dignity or create the requisite environment for her.[399]Did it have either of those effects? In terms of how the Claimant perceived it, as we have said, she repeated the comment at the time. We had to note also that she said afterwards, “It was good to catch up today”, with a smiling face symbol, and made no reference to the comment having been made. All of that is indicative that she did not perceive it at the time as having the effect she described to us.[400]As to the overall circumstances, we had again to take into account the nature of the relationship between the Claimant and Ms Rowley, including specifically that the Claimant herself had used darker humour, albeit only on one occasion, about Ms Rowley’s husband’s illness.[401]Objectively assessed therefore, whilst the comment may have been illadvised, in its context – this relationship, this team and this conversation – it was not reasonable for it to have the requisite effect.[402]Again, the Claimant would not have established facts from which we could Complaint 9.1.5 – Ms Rowley informed the Claimant that she had told Sharon Knowles that the Claimant looked all right, in a conversation with the Claimant on 10 September 2021[403]The conduct in question was Ms Rowley’s conversation with Ms Knowles. Was it unwanted? The Claimant said to us it was dismissive of her condition, and that it was a conversation with a third party. It seemed to us however that the Claimant wholly misinterpreted what went on. Both Ms Rowley and Ms Knowles were friends of the Claimant, and to say that there is something inherently improper about two friends and colleagues discussing another friend and colleague who is unwell would be stultifying of workplace conversation and wholly wrong. It must depend on what was said. What seems to have happened in this instance is that Ms Rowley was expressing surprise and concern at Ms Knowles’ report about the Claimant, nothing more. By any measure, the comment was not in fact unwanted.[404]Was it related to disability? If the Claimant had been disabled, then disability might have been the context for the conversation, but the comment itself, whether in and of itself or as a result of Ms Rowley’s intent in making it, was not related to disability.[405]It plainly did not have the requisite purpose. As we have stated, Ms Rowley was simply expressing surprise and concern. As to the requisite effect, even if we had accepted that the Claimant perceived the comment negatively, as somehow casting doubt on her illness, such that the conduct was also unwanted, objectively, taking the communications that she had with Ms Rowley overall during her absence, in which there was no indication that Ms Rowley disbelieved that she was unwell, and the nature of the conversation and who it involved, it was not reasonable for the comment to have either of the statutory effects.[406]Again, the Claimant would not have established facts from which we could Complaint 9.1.6 – Ms Rowley’s question “Are you down to five loo trips a day yet?” on 1 December 2021[407]Plainly, if the Claimant had been a disabled person at this point, this comment would have been related to disability.[408]We thought it obvious that it did not have either of the statutory purposes. Again, the comment was indicative of Ms Rowley’s general style of communication with someone she regarded as a good friend. Further, it is not even clear that the comment was meant to be humorous or sarcastic as opposed to being an enquiry about whether things had improved. In any event, particularly given the nature of their relationship, we were in no doubt that Ms Rowley did not purpose that the comment would violate the Claimant’s dignity or create the statutory environment.[409]Did the comment have either of those effects? 409.1. On the question of the Claimant’s perception, her reply to the question which was to the effect, “I’ve never been as low as 5 a day, lol”, is telling. She said again that this was to close down any further conversation about her toileting needs, but we did not accept that. First, she had discussed her toileting situation with Ms Rowley on more than one occasion. Secondly, her reply to Ms Rowley was not the sort of reply that indicated a wish to end this particular discussion. 409.2. The circumstances of the case were also crucial to note. First, again, there was the historic relationship between Ms Rowley and the Claimant, and the way in which it was conducted, including their banter related to health issues. Secondly, the Claimant herself had raised on more than one occasion with Ms Rowley the issue of repeatedly having to go to the toilet, so that Ms Rowley’s comment did not come out of nowhere. Thirdly, the immediate context was the very informal and friendly comment from the Claimant, “Yay good news, we have some improvement”. In our judgment, the use of “Yay” was another indication of the informal and friendly relations between the two. We also thought the reference to “we” having some improvement explicitly drew Ms Rowley into discussion of the issue. Fourthly, as we have said, it was not even clear that Ms Rowley asked the question sarcastically: it was on its face simply a factual question. For all of these reasons, it was not reasonable for the comment to have the effect on the Claimant that she sought to claim.[410]Again, the Claimant would not have established facts from which we could Complaint 9.1.7 – Ms Rowley informed Ms Knowles that the Claimant had been out shopping, on 14 December 2021[411]Giving the Claimant the benefit of the doubt as to whether this was unwanted conduct, was it related to disability? We did not think it was. It was related to the Claimant being absent from work and venturing out. Disability would have been the context had she been disabled, but no more; the comment itself did not relate to disability.[412]In any event, it did not have either of the requisite purposes – Ms Rowley was simply passing comment to Ms Knowles about what the Claimant had told her, and in fact was unsurprised that the Claimant was out and about as she knew she wanted to return to work and attend a Team meeting. There was no evidence that the comment had either of the requisite effects either. If the Claimant perceived that Ms Rowley was in some way casting doubt on her being unwell, that was not objectively reasonable given that she had given no other indication to that effect at any point; in fact, the evidence very much suggested the opposite.[413]Again, the Claimant would not have established facts from which we could[414]It is agreed of course that the Claimant did a protected act when making a claim to the Tribunal on 12 June 2022. The alleged detriment is that Ms Duljeet and Ms Ianetta walked past her house on 25 May 2023, spoke in raised voices and intimidated the Claimant, causing her to return inside.[415]Did this happen? As our findings of fact make clear, it is correct that Ms Duljeet and Ms Ianetta walked past the Claimant’s home, but there was no evidence that they spoke in raised voices and intimidated the Claimant. If Ms Duljeet raised her voice in any way, this was because she was using her mobile phone; this was not directed at the Claimant or done with her in mind.[416]Focussing therefore on the sole fact that Ms Duljeet and Ms Ianetta walked past the Claimant’s home, was that a detriment? The Claimant may have perceived she was being checked upon, but that is not the same as saying that this is in fact what was going on and was insufficient to establish that the Respondent subjected her to a detriment in this way. As we have said in the harassment context, Ms Rowley was very regularly in touch with the Claimant, and so did not need to arrange for her to be checked on. We were not satisfied therefore that the Claimant had established the detriment on which this complaint depended.[417]In any event, there was no evidence that Ms Duljeet and Ms Ianetta walked past the Claimant’s home because she had brought a claim to the Tribunal. All of the evidence, including in particular Ms Ianetta’s email after the walk, shows the real reason why she and Ms Duljeet walked past the Claimant’s home on that day, namely that they were checking on the whereabouts of a traveller community and, if they had used this pleasant road before, taking that route to get their steps in. Furthermore, the Claimant told us that this was the first time after bringing her Claim that this had happened, though it had happened before she brought the Claim. That very obviously undermined her case that on this specific occasion her colleagues were walking past her house because of her Claim, nearly a year later. The much more plausible explanation for the specific date was that provided by the Respondent.[418]The Claimant did not prove facts from which we could have concluded that she was victimised. The complaint of victimisation therefore failed. Withdrawn complaints[419]That deals with all of the Equality Act complaints, except to repeat that the Claimant withdrew complaints 5.1.1, and 6.1.1 to 6.1.7 inclusive. Mr Waller confirmed that there was no reason why they should not be dismissed and therefore we dismissed them.[420]As the List of Issues made clear, what the Claimant said the Respondent did that led to her resignation were the things said to be direct discrimination, discrimination arising from disability, failure to make reasonable adjustments and harassment, culminating on 4 April 2022 when she returned to work following annual leave and, on her case, was instructed that she would be working on the Homes for Ukraine Project.[421]Beginning with the alleged last straw (which encompasses complaint 6.1.24 and the reasonable adjustments complaint based on the PCP at paragraph 8.2.2 of the List of Issues), it will be clear by now that we found that what Ms Rowley in fact said to the Claimant about the Homes for Ukraine project was, to use the language of the case law, completely innocuous. In short, Ms Rowley informed the Claimant that she would like her to take a role in the Project, but did not instruct her to do so. We have also noted that the Claimant said she would consider it, indicating that this was a genuine dialogue between her and her manager. We did not accept therefore that the conversation in question could properly and objectively be characterised in the way that the Claimant indicated in her resignation email, namely that she was being “forced to accept changes without consultation”.[422]That was not the end of the Claimant’s case that she was constructively dismissed however, because as the decision in Williams v Governing Body of Alderman Davies Church in Wales Primary School makes clear and as Mr Mellis recognised, we still needed to go back and see, putting aside any question of affirmation, whether the implied term was breached by the Respondent’s earlier conduct relied upon for the discrimination complaints except those matters relied on for indirect discrimination purposes, and also excepting the victimisation complaint which related to events post-resignation.[423]We concluded that there was no discrimination, but it was agreed that we were still required to consider whether the facts of each such matter individually or together breached the implied term. We did not include the withdrawn discrimination complaints in our analysis of this question. That must be the right approach as, given their withdrawal, the Respondent did not cross-examine the Claimant about them, nor did we (or the Claimant) ask the Respondent’s witnesses anything about them either. Our approach was thus to work through everything else in the List of Issues and we did so in the order in which they appear in that List, rather than chronologically, for ease of analysis, grouping together allegations where they concern common themes.[424]What emerged from that analysis?[425]The issues with the roofless duty rota in January and April 2022 (complaints 5.1.2 and 5.1.4) were, initially, no more than Ms Rowley asking Ms Watts to include the Claimant in the rota, and the Claimant being on leave when it was circulated, which was therefore entirely routine. As for Ms Rowley putting the original dates back in the rota when the Claimant had discussed them with Ms Watts, as we have said, it may have been disappointing for the Claimant, having put forward dates to avoid, to have them set aside on Ms Rowley’s instruction, but we were not told that having to work the dates Ms Rowley set was in some way problematic for the Claimant, other than that she said at this Hearing that she wanted non-consecutive days to rest, which we will come back to separately below. We did not accept that this sequence of events could contribute to a breach of the implied term, given also that Ms Rowley’s reason for changing the dates was the objectively understandable one that she wanted the Claimant to do her duty slot and then be available the next day to be able to follow up any resulting work.[426]Ms Rowley’s comment that the Claimant should be available on any working day (complaint 5.1.3) was also routine in our judgment. It was simply an expression of her view and a statement of fact in no way given inappropriately: to hold that this is something that could contribute to a breach of the implied term would in our view be damaging to proper managerial prerogative. We also repeat that we were not given any evidence that at the time of these discussions the Claimant encountered any difficulty as a result of having to work the times Ms Rowley specified.[427]We have found that the Respondent did follow the recommendations of OH in January 2022, and discussed those recommendations with the Claimant (complaint 6.1.9). Specifically, it implemented the recommendation that the Claimant be permitted to work from home, together with a variation of her duties (this also addresses complaint 6.1.11). Very obviously, it cannot form the basis of a case that the Respondent breached the implied term of trust and confidence that it did not do everything the Claimant wanted (recommended by OH or not) in the way she wanted.[428]Turning to complaint 6.1.10 and the balance of 6.1.11, the Claimant misconstrued Ms Rowley’s text message of 25 January 2022 regarding working 9 am to 5 pm; it was clearly a supportive message. As to the email two days later, it was not hostile (complaint 6.1.15). As we have said, it is difficult to see how the comments Ms Rowley made in that email could be construed as unfavourable to the Claimant at all. Ms Rowley simply spelt out what she understood had been agreed and did so professionally. The Claimant may have felt distressed – we reached no conclusion on that either way – but that does not mean what Ms Rowley wrote was in some way inappropriate. From our objective point of view, it was not. The Claimant was informed that she was required to be available from 9 am to 5 pm, but that was wholly appropriate based on the needs of the service – this also deals with the reasonable adjustment complaints based on the PCPs at paragraphs 8.2.3 and 8.2.4 of the List of Issues.[429]In terms of flexible working, as we explained when dealing with the reasonable adjustment complaints, the core of what the Claimant was driving at was that she was prevented from taking the breaks she needed. We have rejected that aspect of her case on the facts. Returning to complaint 6.1.15, very obviously the fact that Ms Rowley did not agree to all of the Claimant’s requests did not mean that the matters the Claimant had raised with her were not addressed.[430]The length of the Claimant’s phased return to work (complaint 6.1.12) was not changed, or at least not materially. It was certainly not changed from three months to four weeks as the Claimant alleged. She had close to three months, to use up her leave and start the process of returning to work, and of course the Respondent then agreed fixed revised hours for six months from 4 April 2022.[431]Complaint 6.1.13, specifically the Claimant being told when she had to take annual leave, seemed to us to be about the requirement to work consecutive working days, which had the consequence that she could not choose when she would take her annual leave. This was not what the Claimant wanted, but whilst her case before us was that working non-consecutive days was essential for her recovery, what she said to Ms Rowley at the time – as Ms Rowley made clear in her email of 27 January 2022 – was no more than that it would break up the week. To be denied that preference could not in our judgment objectively and sensibly be said to contribute to a breach of the implied term. This also addresses the balance of the reasonable adjustment complaint based on the PCP at paragraph 8.2.4 of the List of Issues. We also record that we simply could not accept the broad assertion that Ms Rowley failed to engage with the Claimant about the management of her phased return. She plainly did.[432]There was no formal return to work meeting (complaint 6.1.14), but that could not objectively speaking contribute to a breach of the implied term, given both the nature of the relationship between the Claimant and Ms Rowley and the fact that the Claimant’s return to work was actually discussed in some detail, just not in a meeting that was set up in a formal way. An informal meeting has many advantages for an employee as we have pointed out. As we have also already noted, the absence of a risk assessment was not addressed in the evidence and as a result the Claimant did not explain how that could be said to contribute to the alleged breach.[433]We have just commented on that part of complaint 6.1.16 concerning removing the Claimant’s choice about when she would take annual leave. As for contact with her whilst she was on sick leave, in the context of first, the relationship between her and Ms Rowley (certainly as Ms Rowley perceived it), secondly the absence of any objection from the Claimant, and thirdly the fact that the contact consistently seems to have involved the mutual exchange of pleasantries and personal information, the fact and content of the contact that we were taken to could not objectively contribute to a breach of the implied term either.[434]Ms Rowley did not disapprove of the Claimant’s need to take leave (complaint 6.1.17); in fact, it was Ms Rowley who worked with the Claimant to put in place a plan that would ensure the Claimant took the leave she had accrued so that she did not lose it, and for example insisted that she should work 9 am till 5 pm so as not to build up even more time owed that she could not then take off.[435]In respect of the amount of annual leave the Claimant was owed (complaint 6.1.18), the Claimant gave her view on it, and all Ms Rowley said by way of reply was that she understood that she had to close off the sick leave in order to crystallise the holiday entitlement and did not feel able to calculate it otherwise. This was no more than a routine administrative exchange between a manager and one of her team and on Ms Rowley’s part was very obviously her endeavouring to both help the Claimant and get the calculation of the leave right.[436]Turning to complaint 6.1.19, as we have said, the Claimant did not explain to us why she objected to Ms Rowley telling her on 25 February 2022 that she would not be told her role until the Team Leaders had a meeting. This was very clearly completely routine and innocuous.[437]We have found that the decision that the Case Manager role needed to be performed in the office was right and proper (this also addresses complaint 6.1.8 and the reasonable adjustments complaint based on the PCP at paragraph 8.2.1 of the List of Issues). In summary, it was envisaged that this would only affect the Claimant adversely for a short period and the Respondent had very good reasons for requiring the role to be performed in this way. The decision to this effect could not be said to contribute to a breach of the implied term when objectively assessed.[438]What about the decision-making process to reach that decision? Some form of meeting perhaps took place in the Claimant’s absence on 2 March 2022, and although the Respondent did not decide the Claimant’s specific duties in her absence as such, whenever a meeting took place, it was decided in the Claimant’s absence that both Team Leader and duty work needed to be done in the office. Ms Rowley might have taken steps to ensure that the Claimant was involved in the meeting, but we concluded that her failure to do so did not of itself amount nor contribute to a breach of the duty of trust and confidence: 438.1. First, there was no suggestion that Ms Rowley did this calculatedly, and again we have to remind ourselves of how busy she was. 438.2. Secondly, we could understand Ms Rowley wanting to get on with making important decisions even though the Claimant was not present to discuss them. 438.3. Thirdly, and crucially, what the Claimant had said was that Ms Rowley would need to let her know about the discussion as she was going on leave and would not be logging into work emails for five weeks, Ms Rowley saying that she would keep her posted. That is precisely what Ms Rowley did when she updated the Claimant about the Team Leader decision the next day, and discussed with her the implications for her role in their conversations ahead of her return at the beginning of April. It is clear that this sequence of events could not sensibly be said to have contributed to a breach of the implied term.[439]As for the Claimant being told she would be referred to OH if she could not attend at the office for duty work, that was not a threat by Ms Rowley, it was simply a statement of what good practice (the need to understand what steps the Respondent should take in relation to the Claimant’s duties) would require.[440]Complaint 6.1.20 did not seem to us to add anything to the Claimant’s case. Moving on to the application of the AMP, we did think that it is a lesson from this case, for Ms Rowley specifically and for the Respondent generally, that the AMP should be operated in a strictly formal way; it can still be supportive even when that is the case. Ms Rowley might reflect on that, and on other ways in which her informal and friendly approach may be perceived to be unhelpful by some and lead to criticism of her as a manager, fairly or otherwise. We did not think however that any of the elements of how she applied the AMP in the case of the Claimant, even where unfavourable to her, could contribute to a breach of the duty of trust and confidence, because the Claimant knew very well that this was how Ms Rowley dealt with her staff generally, in the context that she was a manager who the Claimant had followed to new roles on two or three occasions, and a manager in respect of whom the Claimant had led a delegation to try to prevent her leaving.[441]Ms Rowley made some mistakes in the application of the AMP, but they were principally of such a minor nature as to be negligible in their impact on the Claimant. We include in that the failure to discuss with the Claimant the Bradford Factor score and the AMP itself before sending her a formal letter, the failure to send a brand-new letter confirming that the Claimant was at Stage 1, the delay in completing the Stage 1 meeting and not informing the Claimant at the start of the relevant discussions that a formal meeting was being held. As we have already said, the Claimant at no point explained to us what negative consequences she experienced as a result of these actions. The most obvious error on Ms Rowley’s part, sending the wrong letter, was immediately corrected and – obviously – a mistake.[442]Complaint 6.1.22 concerned the Claimant saying she felt isolated on her return to work. She seems not to have been given the Team meeting date fixed for 7 December 2021. This was not ideal, but again we had to bear in mind how busy Ms Rowley was, and of itself it was a minor omission that in no sense could be said to amount to a breach of the implied duty of trust and confidence even if it might marginally have contributed to such a breach if there was a broader series of acts or omissions that could sit alongside it to that effect.[443]Ms Rowley was not responsible for weekly team meetings, and whilst a formal communication of the Claimant’s return to work would have been ideal, the Claimant did not at any point indicate that this is what she wanted, nor did she explain to us how the absence of such an announcement disadvantaged her in any way. We have also held that it was no more than a minor or trivial disadvantage to the Claimant that she did not have formal review meetings in the approximately eight days of work she did in her initial phased return (this is the complaint based upon the PCP at paragraph 8.2.5 of the List of Issues).[444]As for complaint 6.1.23, the Claimant accepted that there was nothing untoward about Gillian Davies carrying out her role temporarily whilst she was on sick leave, which was obviously correct. Ms Davies retained the Claimant’s responsibilities on the Claimant’s return to work for the very good reason that the Claimant could not do the Team Leader role in the office, which we have found the Respondent legitimately required, it being a temporary measure and one which was not on any analysis intended to deprive the Claimant of the role in the long-term.[445]Finally, turning to the complaints of harassment, none of which have been upheld, whilst again we would mention that Ms Rowley might wish to reflect on the fact that an informal approach to dealing with employment-related matters for those she manages is not appropriate for every individual or every situation, as will be clear from our conclusions on the complaints themselves we found that the comments she made could not have contributed to a breach of the duty of trust and confidence towards the Claimant, either because they were wholly innocuous (such as the comment about whether anything had been found wrong with the Claimant’s kidneys, the comments about Ms Ianetta walking past the Claimant’s home and the comment that the Claimant looked all right) or because they reflected the nature of the relationship between Ms Rowley and the Claimant over many years, which as we have said the Claimant sought to underplay but which we found went well beyond a regular manager/subordinate relationship.[446]As the Claimant did not establish that the Respondent’s conduct, in respect of any individual matter or taken collectively, breached the duty of trust and confidence, it was not necessary for us to consider whether she resigned in response to the Respondent’s conduct or whether she affirmed the contract before doing so. She was not dismissed, and so the complaint of unfair dismissal was not well-founded.[447]Our conclusions to the effect that all of the Claimant’s complaints failed meant that any questions relating to time limits did not arise for consideration either.
Summary
[448]The Respondent conceded that the Claimant was a disabled person as defined by section 6 of the Equality Act 2010 for the period from 11 January 2022 until 4 April 2022. The Claimant was not a disabled person as defined by section 6 of the Equality Act 2010 in the period 11 February 2021 to 10 January 2022.[449]In any event, the Respondent did not know and could not reasonably have been expected to know that she was a disabled person in that period.[450]The following complaints were dismissed on withdrawal – complaints 5.1.1, 6.1.1, 6.1.2, 6.1.3, 6.1.4, 6.1.5, 6.1.6 and 6.1.7.[451]The Respondent did not contravene section 39 of the Equality Act 2010 in any of the following respects: 451.1. By discriminating against the Claimant because of disability – complaints 5.1.2, 5.1.3 and 5.1.4. 451.2. By indirectly discriminating against the Claimant in relation to her disabilities (or any of them) by the application of the provisions, criteria or practices (“PCPs”) set out as complaints7.1.1 and7.1.2 or by the application of the additional PCP that from 3 March 2022 it had a policy that Case Manager duty could only be done in the office. 451.3. By failing to make reasonable adjustments in relation to the PCPs set out as complaints 8.2.1, 8.2.2, 8.2.3, 8.2.4, 8.2.5 or in relation to the additional PCP that from 3 March 2022 it had a policy that Case Manager duty could only be done in the office. 451.4. By discriminating against the Claimant because of something arising consequence of disability – complaints 6.1.8, 6.1.9, 6.1.10, 6.1.11, 6.1.12, 6.1.13, 6.1.14, 6.1.15, 6.1.16, 6.1.17, 6.1.18, 6.1.19 (which comprised three separate complaints), 6.1.20, 6.1.21 (which comprised six separate complaints), 6.1.22 (which comprised four separate complaints), 6.1.23 and 6.1.24. 451.5. By victimising the Claimant – complaint 10.2.[452]The Respondent did not contravene section 40 of the Equality Act 2010 by harassing the Claimant – complaints 9.1.1, 9.1.2, 9.1.3, 9.1.4, 9.1.5, 9.1.6 and 9.1.7.[453]The Respondent did not dismiss the Claimant. Accordingly, her complaint of unfair dismissal contrary to section 94 of the Employment Rights Act 1996 was not well-founded.[454]We recognise this is a very long judgment. It is simply a reflection of the large number of issues we were required to deal with.